Divorce

There are many couples in the state of North Carolina that decide to divorce each year. It Is often a difficult and painful decisions. Divorces in the state of North Carolina are granted based upon a one year separation period.

Finding a professional divorce lawyer in Wilmington NC is not that easy, but before that you should be aware enough of what you are about to do. North Carolina is a no fault state. However, there are many other marital claims that arise out of the dissolution of a marriage. The claims associated with a divorce or the dissolution of marriage are: Alimony, Child Custody, Child Support, Equitable Distribution, Interim Distribution, and Post Separation Support. It is necessary to file claims for Equitable Distribution, Interim Distribution, Post Separation Support, and Alimony prior to the entry of the Divorce Judgment. If one fails to file the aforementioned claims there is a strong possibility that the claims maybe lost forever.

 

Frequently Asked Questions
  • What is an “absolute divorce”?Open or Close

    In North Carolina, “absolute divorce” refers to the termination of the marriage bond that was created by your wedding ceremony and marriage certificate. Divorce permanently ends that marital relationship. Because the marital relationship is terminated, the spouses no longer owe each other any further marital obligations or duties, and they are free to remarry.

  • What are the grounds for divorce in North Carolina?Open or Close

    The North Carolina no-fault divorce statute allows the parties to divorce, if they meet the following three (3) criteria:

    (1) they must live “separate and apart” (meaning, they are not living as spouses and do not share a residence) for one uninterrupted year.
    (2) the reason they are living apart is that one or both want to stop living and acting as a married couple.
    (3) at least one of the spouses has lived in North Carolina for the last six months. That is all that the statute requires. This is a simple threshold to meet, because all it requires is the passage of time.

     

    The court may also grant an absolute divorce on grounds of one spouse’s “incurable insanity.” This is the rarer of the two routes to an absolute divorce. It requires, among other things, that the spouses currently live separate and apart and that they have lived separate and apart for the last three years because the mentally ill spouse was confined for purposes of medical treatment. If you think this law might apply to you, it would be prudent to consult with an experienced family law attorney, because the law is complex.

  • Is my Spouse at fault for our divorce?Open or Close

    No, not in North Carolina. States that have “fault” divorce laws allow “innocent” spouses to obtain a divorce on the basis of emotional, physical, or financial injuries caused by the “guilty” spouse (the one who has committed some kind of marital misconduct). Obtaining a divorce on the basis of fault can be time-consuming and difficult, so North Carolina abolished all its fault laws in 1983.

  • Can I get an annulment?Open or Close

    There are many variations of but the majority have suffered alteration in some form, by injected humour, or randomised words which looks. There are many variations of but the majority have suffered alteration in some form, by injected humour, or randomised words which looks. Annulment means that the marriage between two spouses is voided. Once the Court orders an annulment, it is as if the marriage never existed. You can only get an annulment in very limited situations. This is not the same as a religious annulment, which can only be granted by your church and has no legal effect on your marital status.

     

    Many people think an annulment is an easier or quicker alternative to getting a divorce, but this is simply not true. Because the situations in which an annulment could be granted are limited and very specific, you should seek the help of a lawyer if you want an annulment.

     

    In North Carolina, a marriage that is shown to be invalid can be annulled. There are two types of invalid marriages in North Carolina - "voidable marriage" and "void marriage." A "voidable marriage" includes the following situations:

     

    1. incest, meaning the husband and wife are closer than first cousins (for example: double first cousins, uncle/niece, siblings),
    2. “false pretenses,” meaning the husband and wife got married believing the wife was pregnant, but then separated within 45 days of the marriage and no child was born within 10 months of the separation,
    3. either spouse was physically impotent at the time of the marriage (impotence must be diagnosed by a doctor),
    4.either spouse was “not of sound mind” and incapable of entering a contract at the time of the marriage, or
    one of the spouses was under the age of 16 at the time of the marriage (unless there was a court order allowing marriage between ages 14-16 when the wife is pregnant).

     

    It is important to understand that voidable marriages can be made made legal or “ratified” by the actions of the husband and wife. If the husband and wife continue to live together after the marriage and then have a child together, their marriage may become valid. If this happens, one of them would have to file for a divorce to end their marriage.

     

    In North Carolina, the only absolutely "void marriage" is when there is bigamy (where one spouse was already legally married to some other living person). A bigamous marriage is never made valid by the actions of the spouses and can even be challenged after the death of one of the spouses. A bigamous marriage is automatically void and an annulment is not legally needed to make the marriage void. However, even in this situation, you should still seek a court order that annuls your marriage in order to avoid future confusion about your marital status.

  • How can I return to my maiden name?Open or Close

    North Carolina law allows a spouse, in conjunction with a divorce, to take a name other than the current spouse’s last name. You would petition for the name change when you file your divorce complaint or when you file your answer to your husband’s complaint. In your complaint for divorce or your answer, you may petition the court to change your name to either your maiden name, the surname of a prior deceased husband or the surname of a prior living husband if you have children who have that husband’s surname. The court will issue an order at the time of the divorce granting your request for a name change.

     

    Should you decide after the divorce that you want such a name change, you just present your divorce judgment to the clerk of court. For a nominal fee, you will be allowed to have one of the name changes specified above.

  • What is a legal separation in North Carolina?Open or Close

    Legal separation in North Carolina occurs on the date that a husband and wife move into separate residences with the intent to continue living apart from one another. Sharing the same residence but sleeping in separate bedrooms does not constitute separation.

  • Do we need a Separation Agreement to be legally separated?Open or Close

    No. You are legally separated as soon as you begin living separate and apart with the intention for the separation to be permanent. Although the law does not require a couple to sign paperwork when they separate, you should consider drafting a separation agreement if you decide to live apart. Many people frequently hire attorneys to draft their Separation Agreement and Property Settlement papers in order to resolve certain issues at the time of separation. Within these separation agreements people often outline how their property will be divided, how much, if any alimony will be paid, how child custody will be arranged, and what amount of child support will be paid.

     

    A separation agreement can contain any one or all of the issues. The only issue that cannot be contained in a separation agreement is the divorce itself. The divorce can be obtained after one year and one day of separation in North Carolina. When spouses are in agreement over these issues and wish to avoid more costly litigation in court, a Separation Agreement and Property Settlement may be their best option. However, it is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.

  • How long do I need to be separated from my spouse before I can file for divorce?Open or Close

    In North Carolina, spouses are required to live separate and apart for at least twelve (12) months and a day prior to filing a Complaint for Absolute Divorce. This means that the parties have lived in separate residences for at least a year and have at no time resumed the marital relationship which formerly existed between them during that period of separation.

  • What does “resumption of the marital relationship” mean?Open or Close

    Under prior case law, living “separate and apart” meant a cessation of habitation as well as sexual relations. Under present law, isolated incidents of sexual intercourse after the date of separation do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident of sex is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” for purposes of calculating the consecutive one-year period required for divorce.

  • Can we use the same lawyer?Open or Close

    No. Lawyers are bound by the Rules of Professional Conduct which prohibit representing both sides in an adversarial – or potentially adversarial – situation.

  • What if my spouse doesn’t want to divorce?Open or Close

    It doesn’t matter. As long as you have been living separate and apart for more than one year and correctly filed the proper paperwork, you can get a divorce.

  • What information goes into a Divorce Complaint?Open or Close

    Aside from some legal terminology required by statute, a Complaint for Absolute Divorce is relative simple form, in that it only contains the following information:

    &

    1. The county and state of residence for both Plaintiff and Defendant
    2. Date and location of the marriage
    3. Date of Separation
    4. The names and dates of birth for any minor children born of the marriage of the parties.

  • What do I do if I have other issues to resolve besides the divorce, such as child custody, child support, spousal support or property division?Open or Close

    If the husband and wife are unable to resolve all issues with a Separation Agreement, then a court order may be necessary. Before a court can have jurisdiction (authority) to enter an order, one spouse must file a complaint initiating a lawsuit against the other spouse. Once a lawsuit has been opened, the court can resolve issues such as child custody and support, visitation, short term spousal support, alimony, and property division.

  • Can we still get divorced if we haven’t yet resolved other issues, such as child custody, child support, spousal support or property division?Open or Close

    Yes, you can. However, it is important to consult with an attorney before filing for divorce if you have these other issues pending. Certain claims, such as equitable distribution and alimony cannot be filed after a divorce has been granted.

  • How does the Divorce Complaint get served to my spouse?Open or Close

    Service is the form of delivery of a document required by pertinent legal rules. In North Carolina, a Civil Summons and Complaint must be served upon the Defendant either by certified mail or by Sheriff.

  • If attempts to serve my spouse by certified mail and/or by sheriff don’t work, can I still get divorced?Open or Close

    A final, alternative method is a process called “Notice of Service of Process by Publication”. A party that cannot otherwise be served with due diligence by personal delivery or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. §7502(f)(2), may be served by publication.

     

    This method of service consists of publishing a notice of service of process by publication once a week for three (3) consecutive weeks in a newspaper that is qualified for legal advertising and circulated in the area where the defendant is believed to be located. Upon completion of this service, an affidavit of service by publication must be filed with the court.

  • What do I do if I have other issues to resolve besides the divorce, such as child custody, child support, spousal support or property division?Open or Close

    If the husband and wife are unable to resolve all issues with a Separation Agreement, then a court order may be necessary. Before a court can have jurisdiction (authority) to enter an order, one spouse must file a complaint initiating a lawsuit against the other spouse. Once a lawsuit has been opened, the court can resolve issues such as child custody and support, visitation, short term spousal support, alimony, and property division.

  • Does a Divorce Complaint have to be answered?Open or Close

    No, not necessarily. The Defendant typically has 30 days from the date of service of summons and complaint upon him or her to file answer or other responsive pleading. A Defendant can also move for an additional 30-day extension of time. In cases where service has been by publication, the Defendant has 40 days to file an answer. It commonly happens, however, that Defendants in divorce actions file no answer. In such a case, you just wait out the waiting period for calendaring the case for hearing (or, if your spouse will agree, you get him or her to file a paper waiving the waiting period). At the expiration of the applicable waiting period, the case may be calendared for hearing.

  • Do I have to go to Court to get divorced?Open or Close

    If you have hired an attorney, then the answer is usually no. Your attorney will bring the draft of the Divorce Judgment, which the judge will sign, after reviewing the legal filings and ensuring that everything has been processed and served correctly. On a rare occasions, a live hearing may be required by the Court, and your attorney will advise you of this in advance.

  • Can my Separation Agreement be incorporated into my Divorce JudgmentOpen or Close

    If you wish to incorporate your Separation Agreement into your divorce decree (thus making your Agreement a Court Orde), you must petition the Court for an incorporation of that agreement as part of your Divorce Complaint. The Separation Agreement then becomes part of the court file and an order, which may also be modifiable.

     

    Most Separation Agreements are not incorporated, as they are valid and fully enforceable contracts on their own. However, you should consult with an attorney about how this may affect your personal situation.

  • Do you charge a flat fee for divorce, and does this include the filing fees?Open or Close

    If you have hired an attorney, then the answer is usually no. Your attorney will bring the draft of the Divorce Judgment, which the judge will sign, after reviewing the legal filings and ensuring that everything has been processed and served correctly. On a rare occasions, a live hearing may be required by the Court, and your attorney will advise you of this in advance.

  • Do you charge a flat fee for divorce, and does this include the filing fees?Open or Close

    Yes, we do. The flat fee for an Absolute Divorce case is usually $750.00. This includes both the attorney’s fees, filing fees required by the Court, and the fees for service either by certified mail or sheriff. Should we be unable to serve your spouse by either of these methods, an additional fee will be required to cover the cost of service by publication and/or any other research required to locate your spouse.

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