This page offers resources that can help you get a North Carolina separation or divorce. You'll find everything you need to access the divorce information and laws as they relate to your case. Plus you can find the forms needed to do your own divorce, get options for choosing a divorce lawyer, and locate other useful resources where you can get help.
In the state of North Carolina, one spouse must have lived in the state for six months prior to filing for divorce. More importantly, North Carolina requires that spouses live apart from one another for at least one year prior to filing for divorce - known as an “absolute divorce.” This means the spouses have lived in separate homes for that time period, and at least one spouse intended the separation to be permanent. If, after living apart for several months, the spouses move back in together, then decide the marriage really is over, the calendar resets.
In other words, you are not allowed to count the initial time you lived apart from one another toward the one-year separation. You must be able to show you lived apart from your spouse for the required amount of time, whether through a rental agreement, an affidavit from a roommate, or similar proof.
North Carolina is a bit different from other states regarding grounds for divorce. The state recognizes two types of divorce.
The first, most common type, is an Absolute Divorce. An Absolute Divorce is a complete end to a marriage, accompanied by a Decree of Divorce, as well as “collateral” court orders which address child support, child custody, alimony, and division of marital assets.
There are only two grounds for an Absolute Divorce: incurable insanity and separation for one year and a day. Incurable insanity must be proven by the couple living separate and apart for three years because of the incurable insanity, along with expert testimony from two physicians regarding the nature of the insanity. (One of those physicians must be a psychiatrist from a North Carolina four-year medical school).
The second type of divorce in North Carolina is known as Divorce from Bed and Board, which is, in actuality, a court decree recognizing a married couple is legally separated. Divorce from Bed and Board may have many things in common with an Absolute Divorce, although once a court grants a Divorce from Bed and Board, the parties may not legally remarry, and must obtain an Absolute Divorce to officially end the marriage.
Unlike an Absolute Divorce, there are six grounds for a Divorce from Bed and Board—all of which are fault-based:
If you meet the requirements for a North Carolina divorce, you may begin the process of filing for the divorce. The first step is for one spouse to file a Complaint with the county clerk in the county of residence. Your divorce attorney can do this for you, saving you the time and trouble. Your complaint will state the facts of your case, including how you would like the marital property divided, whether you are asking for spousal support, and how you would like child custody to be decided.
After your Complaint for Divorce is properly filed, the sheriff’s office will serve the complaint to your spouse, usually via certified mail, although the sheriff’s office can serve the paperwork in person.
If the sheriff’s office is unable to serve the papers, you may attempt to serve the papers via certified mail or by a designated delivery service such as UPS or FedEx. You will also need to provide proof your spouse received the divorce complaint. If you are unable to locate your spouse, you can notify him or her via publication in a local newspaper, but there are specific requirements, and you should discuss this with your divorce attorney. You may not deliver the documents to your spouse in person—this is not considered legal service.
From this point, if you believe your divorce is going to be uncontested and relatively friendly, you can enter into mediation to wrap up the details. The court may also order mediation for a contested divorce, but if mediation is unsuccessful, the case will end up at trial. If your divorce is set for trial, the discovery phase will come first—this is where both spouses will try to find out everything they can about the other spouse’s case, including all financial information. In some instances, depositions will take place prior to the trial.
Although legal separation is in some ways similar to a Divorce from Bed and Board, there are important differences. A separation agreement is not required to be legally separated in the state of North Carolina, you must only be living in different homes. One of you must have the intention of the separation being permanent for it to be considered a legal separation. As you might imagine, “intention” could potentially be difficult to prove. If you still reside under the same roof, even if you believe your relationship has ended, you are not considered legally separated.
A separation agreement is a private contract between separated spouses, which included agreed-upon terms related to the separation. These terms could relate to who is responsible for which household bills, who will continue living in the marital home, where the children will live, and whether one spouse will receive spousal support.
North Carolina does not require a separation agreement for a legal separation to be valid, although such an agreement can be helpful if there is any level of contentiousness involved in your separation. If you want to ensure your separation agreement is valid, it must be in writing, it must be signed by both parties, and it must be notarized.
Provisions regarding child custody and child support may be included in a legal separation agreement, but if one of the parents later files a child custody case during the actual divorce, the judge is free to order a totally different custody arrangement which he or she believes to be in the best interests of the child. Child support can also be changed if the amount agreed upon by the spouses during the separation fails to meet the reasonable needs of the child or children or if a significant change in circumstances has occurred.
Unlike a Divorce from Bed and Board (which is a court-ordered separation), a legal separation does not require the spouse requesting the separation to prove serious fault like the Divorce from Bed and Board does. If you are separated as a result of a DBB order, you still must wait one year to file for an Absolute Divorce. If you are separated under a North Carolina legal separation, you can count the one year and one day necessary for an Absolute Divorce from the time you begin living separately.
In North Carolina, under the laws of equitable distribution, marital assets are divided fairly, although not necessarily equally. The following factors will be considered to ensure an equitable division of marital assets:
The court typically will not consider issues such as adultery when dividing the marital property, unless the misconduct of one spouse led to an overall loss of value to the marital estate. If one spouse obviously dissipated marital assets (as an example, one spouse spent a considerable amount of marital assets on an extra-marital affair) then that amount could be offset by the judge to make the division fair.
Any property owned by one spouse prior to the marriage is considered separate property, so long as the assets were not commingled with marital assets during the marriage. If one spouse received a gift meant solely for him or her or an inheritance during the marriage, that gift or inheritance is considered separate property, so long as no commingling with marital property occurred.
Spousal support or alimony is strongly influenced by the length of the marriage. That being said, the judge will only order alimony if one spouse needs it, and the other has the ability to pay. In other words, even if one spouse obviously needs alimony, if the other spouse is unable to pay, there will be no alimony award. The court will consider all relevant factors when making a decision regarding alimony, including the following:
North Carolina courts may not award alimony if the spouses make roughly the same income, plus there is no hard and fast rule in the state regarding how long a couple must be married for one spouse to receive alimony. That being said, a spouse in a marriage that lasted ten years or less is unlikely to receive alimony for longer than half the length of the marriage.
If a spouse is awarded alimony, it could be one of three different types. Rehabilitative alimony is the most common type of alimony awarded in North Carolina. Rehabilitative alimony helps the receiving spouse obtain education or training to become self-supporting. Permanent alimony is just what it sounds like—regular alimony payments for the life of the receiving spouse unless he or she remarries, beings living with a new partner, or if the paying spouse dies. Temporary alimony is awarded when the receiving spouse needs help getting back on his or her feet and may be awarded in regular monthly payments or in one lump sum.
North Carolina will base a child custody decision on the best interests of the child. Child custody includes the right to make major life decisions regarding the child or children, and the right to have the child physically in the parent’s care. Visitation includes the right to visit with the child at specific times, usually set forth in a court ordered parenting plan. Legal custody includes the right to make major decisions for the child, including decisions regarding education, religion, health, and discipline. Physical custody refers to where the child physically resides for a larger amount of time.
Parents can have joint custody, although they must be able to consult one another and make parenting decisions, and this is not always possible for divorcing parents. One parent may have the child during the week, while the other has custody every other weekend, on alternating holidays and for an extended period in the summer. A true 50/50 split rarely works unless the parents live in close proximity to one another - and get along reasonably well. While the parents can decide between themselves on a Parenting Plan (which includes a visitation schedule), if they are unable to make these determinations, the court will decide for them.
The judge will typically consider the following factors when determining custody:
In the state of North Carolina, children are allowed to testify as witnesses to specific incidents, although the judge will have to determine whether the child understands the difference between truth and a lie. If the child is mature enough, the judge may ask what the child’s preference would be as far as custody and may take that preference into consideration.
While both parents are responsible for financially supporting their child, only the non-custodial parent makes child support - if that parent has less than 123 overnights per year with the child. The custodial parent who has more than 242 overnights with the child is already assumed to be directly spending the required amount of money on the child.
When each parent has at least 123 overnights with the child, a formula is used to determine child support. The formula is based on the income of each parent, the number of children, and the number of overnights for each parent. Income which is excluded from the child support calculations includes the support received for other children, food benefits and other forms of public assistance.
Child support normally continues until the child turns 18 or becomes emancipated. If the child has not graduated from high school, child support be ordered to continue until the child graduates or the 20th birthday of a child (whichever occurs first).
Same-sex marriage became legal in North Carolina in October 2014 and legal across the nation in June 2015. As such, same-sex divorce is also recognized in North Carolina, although there may be a few extra issues to be decided. A same-sex couple who is filling out paperwork for a North Carolina divorce may wonder whether they should use the date they began living together, or the date they were legally married. North Carolina courts only consider the legal date of the marriage, regardless of how long the couple lived together.
The laws of equitable distribution apply to a same-sex couple in the same way they apply to a heterosexual couple when dividing marital property. In regard to child custody, if each spouse has legally adopted the child or children, they will reach a custody agreement together, just as heterosexual parents do. If one spouse is the legal parent, whether biologically or through adoption, there can be some issues that arise at the time of the divorce, with the non-legal parent having few rights when it comes to child custody.
Divorcing parents of minor children can be required to attend an educational program on the effect of divorce on children. The aim of these classes is to help minimize the trauma of divorce and help ease the children's transition. You can find various programs throughout the state by visiting Active Parenting.
We also have a page which lists other resources here.
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Breeden Law Office
100 Professional Court, Ste 102
Garner, NC 27529
Phone: (919) 661-4970
Counties Served: Wake, Johnston, Harnett
As a family and divorce attorney, Jonathan Breeden has nearly 20 years of practical legal experience. He can help with your divorce or any type of family law question.
QDRO Specialists - QdroDesk™ is the result of 45 years of combined QDRO experience. Providing online QDRO document preparation, the service allows you to prepare your own paperwork with the appropriate settlement agreement language so you can properly divide a retirement account in your divorce.
NCCADV - NC Domestic Violence Website