Getting a Divorce in North Carolina

Divorce Requirements and First Steps

The legal term for a divorce in North Carolina is “absolute divorce.” Spouses can only be eligible to file for divorce if they have been separated for at least one year. Separated, in this context, means that each spouse must have lived apart from the other and that one or both spouses meant for the separation to be permanent. It is not enough for the spouses to remain in the same residence with one staying “downstairs” and one staying “upstairs” or something similar. You each must be in a separate residence for the entire year. You or your spouse must also have lived in North Carolina for at least six months prior to filing for divorce.

Unlike many other states that allow spouses to file a divorce based on fault grounds, North Carolina only allows no-fault divorces. Specifically, the eligibility for divorce is based on one year of separation or incurable insanity.

Filing for a Divorce in North Carolina

There are numerous documents and processes required to initiate a divorce. The first step is to draft and file a complaint. Divorce complaints list the details of your case and state that you are requesting an absolute divorce. It should also include whether you are requesting equitable distribution, post-separation support, alimony, or spousal support. The EARLIEST date either spouse may file for absolute divorce is one year plus one day. There is no standardized form used for complaints; they must be drafted from scratch.

Other important elements of an initial filing are the civil summons, which will be served on your spouse, and a Domestic Civil Action Cover Sheet. There is also a federal law that requires you to submit a declaration along with your complaint. This declaration discloses your spouse’s military enlistment or active-duty status.

Courts charge a filing fee for divorce complaints, and there may be an additional fee to have your spouse served with the divorce papers. At this time, the filing fee is $225, and the cost for the sheriff to serve the other spouse WITHIN the State of North Carolina is $30. The cost is different if you need to serve your spouse by sheriff outside of North Carolina.

Spousal Support and North Carolina Divorces

Spousal support, also called post-separation support and alimony, is financial support paid to a dependent spouse during the separation period or following a divorce. If one spouse made considerably less money than the other or made no income and were financially dependent on their husband or wife, they will likely be considered a dependent spouse for the purposes of alimony.

There is no strict guideline or statutory formula for calculating spousal support. Instead, a judge will consider the specific details of each party’s finances, non-financial contributions, behavior during the marriage, and numerous other factors to determine alimony payments. Other factors a judge will likely consider include:

• The length of the marriage
• The age and health of both spouses
• The needs of each spouse
• The earning capacity of each spouse
• Property and assets owned by each spouse

Marital misconduct can affect alimony. If the supporting spouse engaged in infidelity, drug or alcohol abuse, cruelty, or other misconduct, this will be factored into the judge’s decision. Dependent spouses who cheated during the marriage may lose their right to receive spousal support.

Post-separation support and alimony claims must be requested and properly filed before the divorce is finalized. Failing to do so will mean that you forever lose the right to request spousal support from the court.

Alimony can last for a year, a decade, or a lifetime. Essentially, there are no statutory time periods for spousal support. A judge can award support to a dependent spouse that ends after they have time to get on their feet financially or require the supporting spouse to make alimony payments until one of the following occurs:

• Death of either spouse
• Remarriage or cohabitation of the dependent spouse
• A substantial change in circumstances

Equitable Distribution

Equitable distribution must be requested and properly filed before the divorce is finalized. Failing to do so will mean that you forever lose the right to have your property divided by the court.

Marital property in North Carolina is eligible for equitable distribution, while separate property is not. Classifying assets and debts into these categories is often complex, but the general rule is that separate property is anything owned prior to marriage, and marital property is acquired during the marriage with funds earned during the marriage by either spouse. There are numerous exceptions to this rule. A third category called divisible property may also be important if you or your spouse acquired relevant property after separating but before finalizing the divorce.

The default in North Carolina is to divide property 50/50, but judges can decide that deviation from an even split is equitable for spouses. When evaluating property and equitable distribution, the court will consider, among other things, the following:

• Income and earning capacity of each spouse
• Property and debt of both spouses
• Tax implications
• The length of the marriage

Divorce with Children

The court will also consider any custody, visitation, and child support matters during your divorce.

Child Custody and Visitation

There are two types of custody – physical and legal. Legal custody refers to whether one or both parents have the right to make important decisions in their child’s life, such as education and healthcare. Physical custody refers to having the child physically in your care and is often what is meant when discussing which parent the child lives with primarily. Legal and physical custody can be granted solely to one parent or be shared between both.

Numerous factors go into deciding custody and visitation arrangements, but the primary consideration is the child’s best interest. You or your spouse can file for custody during the separation or have it be decided as part of the divorce.

Child Support

Parents are responsible for financially supporting their children, and child support may be ordered even in joint custody arrangements. North Carolina uses the North Carolina Child Support Guidelines to calculate the amount of support one parent will pay to the other, and those guidelines include factors like the gross income of both parents, custody arrangements, cost of work-related childcare, health insurance for the children, and other support obligations.

Separation Agreements

Separation agreements are not required to be considered legally separated in North Carolina. However, they are useful for establishing terms for your separation and addressing potentially contentious issues that may arise later on. These written agreements are contracts between spouses and can include topics like spousal support, child custody, possession of the marital home, and division of bank accounts. If desired, the separation agreement can be made a part of the final divorce order. This is referred to as “incorporating the separation agreement into the divorce.”

FAQs About North Carolina Divorce

• Do both spouses have to want a divorce?
  No, North Carolina does not require that both spouses agree to the divorce. You can file for divorce if you meet the previously discussed requirements without permission or agreement from your husband or wife. You are required to serve notice to your spouse of the divorce, but they do not need to consent.

• My spouse and I slept together after separation. Does that mean the one-year separation period restarts?
  Not necessarily. North Carolina law states that “isolated incidents of sexual intercourse between parties” do not pause or restart the separation period required for divorce. However, if the totality of the circumstances suggests that a resumption of marital relations has occurred, the separation may be considered to have ended. This would involve a renewal of the spousal relationship, not just isolated incidents of physical intimacy. If renewal of the spousal relationship happens, the one-year period must be restarted from the beginning.

• Can I file for an expedited divorce if I can prove my spouse cheated?
  Infidelity does not affect the divorce timeline because North Carolina only allows for no-fault divorces. The requirement for these no-fault divorces is one year of separation. This isn’t to say that the behavior of a husband or wife has no effect on a North Carolina divorce, but it does not speed up the process.

• What is a divorce from bed and board?
  A Divorce from Bed and Board is not actually considered a true divorce in North Carolina. It is more closely related to separation and is only available in limited situations. If your spouse committed marital misconduct, you might be able to receive a Divorce from Bed and Board. To be eligible for an absolute divorce, you will still need to stay separated for at least one year.

• Can I change my last name as part of my divorce?
  Yes, you can make a request in your divorce complaint to resume the use of your maiden name. Your divorce judgment will include an order that allows you to change your name as part of the divorce.

• My spouse and I have a high combined income. How will child support be calculated?
  In cases where the combined income of both spouses exceeds $40,000 per month, the Child Support Guidelines are not used. Instead, the court will consider the reasonable needs of the child in regard to things like education, standard of living, and health. The Guidelines may be used to determine a minimum in these cases, but they will not be the only tool a judge uses to set support.

North Carolina Family Law Attorney

Navigating this process without assistance from an experienced family law attorney can seem impossible. If you still have questions about your North Carolina divorce or separation, contact North Carolina Legal Services.