Answers to the Top FAQs About North Carolina Divorce
- Answers to the Top FAQs About North Carolina Divorce
- What are the requirements to file for divorce in North Carolina?
- What is the residency requirement to file for divorce in North Carolina?
- Do I need to file legal paperwork to separate from my spouse?
- I just got served with divorce papers – what should I do?
- What if I want a divorce, but my spouse doesn’t?
- How do I file for divorce?
- How much will the divorce process cost?
- How long will the divorce process take?
- What legal issues will I need to address during my divorce case?
- Do all the issues have to be resolved before my divorce is granted?
- How is child custody determined?
- How is child support calculated?
- How can I stop paying child support?
- What is the equitable distribution process and how does it work?
- Can I get (or will I have to pay) alimony?
- How is spousal support (alimony) calculated?
- What is the impact of marital misconduct on divorce?
- Do I have to go to court to get a divorce?
- Is my divorce a high-asset divorce?
- Do I have to hire a lawyer?
- Contact Myers Law Firm, a Trusted Source in Family Law for Clients in Mecklenburg County
Answers to the Top FAQs About North Carolina Divorce
If you’re considering filing for divorce, you may not know where or how to begin. To help you navigate this unfamiliar and intimidating situation, we’ve compiled answers to the most frequently asked questions about divorce in North Carolina.
The claims for custody, child support, equitable distribution, and alimony are separate from the claim for divorce, which only results in severing your marriage. This is very important! The claims for equitable distribution and alimony must be settled or filed in court prior to the granting of the divorce.
Note that divorce laws vary from state to state. You should not assume the answers in this FAQ apply to your situation if you live in a state other than North Carolina.
What are the requirements to file for divorce in North Carolina?
To file for divorce in North Carolina, the couple must have been separated for one year, and one party must have resided in North Carolina for at least six months prior to filing.
In North Carolina, you must live in separate homes and at least one party must have the intent to no longer be in the marital relationship. Sleeping in separate beds and refraining from sexual contact does not meet the state’s definition of “separate and apart.”
What is the residency requirement to file for divorce in North Carolina?
At least one spouse must have resided in North Carolina for six months before either spouse can file for divorce in the state.
Do I need to file legal paperwork to separate from my spouse?
No. There’s no paperwork requirement for a legal separation in North Carolina. If you move into a separate residence and at least one spouse intends to remain separated permanently, then you and your spouse are legally separated.
North Carolina does recognize separation agreements. A separation agreement is a private contract between married individuals that is intended to resolve most or all of the issues surrounding separation by mutual agreement, such as property division, custody, spousal support, and child support. A comprehensive separation agreement, in which both parties fully agree on the full terms of separation, is the best option to avoid a potentially messy and costly court case.
However, as mentioned above, separation agreements are not required in order to be considered legally separated or to get a divorce. They have many advantages, but it’s not always possible for separating spouses to come to an agreement between themselves.
I just got served with divorce papers – what should I do?
The best thing you can do to protect your rights and assets is to contact an experienced divorce attorney and get personalized legal advice right away.
What if I want a divorce, but my spouse doesn’t?
You don’t need consent from the other spouse to file divorce papers in North Carolina. If you have lived separate and apart for one year and if one of you has lived in North Carolina for at least six months prior to filing, you can petition for divorce. You do, however, have to properly serve the other spouse with the divorce papers.
How do I file for divorce?
The person filing must fill out a Domestic Civil Action Cover Sheet, a Civil Summons, and a Complaint for Absolute Divorce. (Mecklenburg County residents can download a copy from the Self-Help Center of Mecklenburg County; these forms may not be accepted in other North Carolina courts).
Afterward, you’ll need to file these forms with the Clerk of Court’s office in your county. Remember to keep copies of every form for your own records.
How much will the divorce process cost?
You can determine the costs for filing the above forms on the North Carolina Courts website or by calling your county’s Clerk of Court office.
However, beyond these filing fees, additional costs are difficult to estimate. For example, you may incur costs for serving the other party, filing additional documents with the courts, and petitioning to have your name legally changed.
How long will the divorce process take?
The length of time until a judge grants your divorce is difficult to estimate. Once you file the Absolute Divorce Complaint, the papers must be served on the other party. The other party then has 30 days to respond, and they can receive an additional 30 days upon request.
If you and your spouse don’t agree on some of the issues, such as the date of separation, then you may have to get a hearing where you go in front of a judge, which could delay the process.
If you and your spouse agree on the divorce, we can prepare the necessary paperwork for you. In this scenario, the process usually takes 50 to 60 days.
What legal issues will I need to address during my divorce case?
The claim for divorce is only one of five possible claims that arise out of a separation. The other four issues are: alimony/spousal support, equitable distribution (the division of marital property), child custody, and child support. Not all of these other claims will necessarily apply to your situation.
Do all the issues have to be resolved before my divorce is granted?
No. These are separate legal issues that can be filed with the court and heard by a judge or resolved by agreement at any time after separation. You do not have to wait the one-year period to deal with those claims.
However, your legal claims for alimony and equitable distribution must be filed with the court (not necessarily resolved) or settled before the divorce is granted. Claims for child custody or child support can be filed at any time.
How is child custody determined?
Parents and courts can determine physical and legal child custody in a number of ways after the separation, including:
- A mutual agreement between the parties that is not filed with the court
- A mutual agreement signed by a judge and filed with the court (known as a “consent order”)
- A decision made by a judge in the course of a lawsuit
When an initial custody decision must be made by a judge, it is their responsibility to determine what is in a child’s best interests and how to translate that into a custody order. North Carolina law creates no presumption between parents, so the process should not be biased toward either spouse at the outset.
How is child support calculated?
Child support in North Carolina is determined in one of two ways. The most common way is that the court will establish child support based on an official set of state guidelines called the North Carolina Child Support Guidelines.
Child support under the North Carolina Child Support Guidelines is based on several factors:
- The parents’ gross monthly income
- Any daycare or childcare expenses paid by the parents
- Health insurance premiums paid by either parent
- “Extraordinary expenses” paid on behalf of a child, which can include things like expenses for visitation-related travel or private school tuition
The guidelines provide a mathematical formula based on all these factors to calculate an amount that the law considers a reasonable amount of child support.
However, judges in North Carolina do have leeway to depart from these guidelines and set a different amount for child support. Usually, this happens because one spouse provides evidence to show that the amount calculated by the guidelines is not a reasonable amount of support based on the unique facts of the case.
How can I stop paying child support?
When child support has been ordered and you are the supporting parent, you must pay on time and in full. Not paying court-ordered child support can lead to wage garnishment, fines, felony charges, and prison time.
The only way you can stop paying the full amount of child support is to successfully file a motion with the court to modify or end child support payments. This is true even if your child turns 18, gets married, or otherwise experiences a life change that would end child support.
What is the equitable distribution process and how does it work?
Equitable distribution is the legal method for property division that’s used by North Carolina courts. Based on the equitable distribution theory, a judge begins with the presumption that a 50-50 division of property is most fair. From that starting point, it’s up to either spouse to provide evidence and arguments that demonstrate that they deserve more than a 50 percent share.
Can I get (or will I have to pay) alimony?
In North Carolina, alimony (also known as post-separation support or spousal support) is determined by the courts, and it isn’t applicable in all cases. If you feel you are entitled to spousal support, you should contact an attorney. An experienced attorney should be able to help you compile the necessary paperwork to prove that you were a dependent spouse or to prove that you were a victim of marital misconduct—both factors that can play a role in whether a court determines alimony is appropriate in your case.
How is spousal support (alimony) calculated?
When North Carolina judges award alimony, the amount varies from case to case based on a wide range of factors. Some of those factors can include:
- How long the marriage lasted
- Each spouse’s income and earnings capacity
- Each spouse’s age and their current physical, mental, and emotional state
- Whether there has been marital misconduct such as abuse or infidelity
- The standard of living for both spouses during the marriage
- The property each spouse brought to the marriage
- Either spouse’s contributions as a homemaker
- Contributions that either spouse made to the other’s education, training, or professional advancement
- The education level of each spouse and their ability to obtain further education or training that they may need to support themselves
What is the impact of marital misconduct on divorce?
North Carolina is a no-fault divorce state, so there does not need to be any marital misconduct for one spouse to initiate a separation and then file for divorce. However, marital misconduct such as cheating and abuse can affect the legal issues related to divorce.
Specifically, marital misconduct could affect alimony if the supporting spouse (the spouse who pays) is the one who committed the misconduct, and it can also affect child custody if the misconduct had a significant negative effect on your child’s wellbeing. Marital misconduct generally does not affect property division during a divorce.
Do I have to go to court to get a divorce?
Not necessarily. If you and your spouse agree on the divorce, we can handle the divorce claim without you having to go to court.
With regard to the other issues which may apply in your situation (alimony, equitable distribution, child custody, child support), if you and your spouse settle these claims outside of court, then you will not need to appear in court to resolve those issues either. If, however, there are disputes that you can’t resolve through compromise, then you will have to go to court.
Is my divorce a high-asset divorce?
A high-asset divorce is one that involves a significant total value in assets. Usually, spouses in a high-asset divorce have total household incomes upwards of $250,000 per year. The spouses may also have high-value assets such as:
- Real estate holdings, sometimes including multiple homes
- Multiple cars or other vehicles
- Family-held or jointly owned businesses
- Retirement and investment accounts
- Inheritance/trust interest
- Expensive/unique collections such as valuable artwork and jewelry
Do I have to hire a lawyer?
You can get divorced in North Carolina without hiring or even speaking with a lawyer. However, talking with an experienced divorce attorney before you begin the divorce process may be in your best interest. North Carolina divorce laws are complex and not always easy to understand.
An attorney can listen to the facts of your situation and should be able to give you expert, practical advice about your legal rights and options. They can also argue on your behalf in court, and they may be able to draw from their knowledge of the law to highlight important information that could affect the outcome of your case. Sometimes, this information might be a detail or event that a person with no legal training would have a hard time recognizing as important or even relevant.
If you are seeking alimony or wish to make any other claims, an attorney should ensure that these claims are properly addressed. Once your divorce is granted, you cannot make further claims for alimony or equitable distribution, so it’s important that you handle these matters carefully and thoroughly during the divorce process. Additionally, if you and your spouse disagree on child support or the division of marital property, an attorney can help you craft a separation agreement and mediate on your behalf.
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Contact Myers Law Firm, a Trusted Source in Family Law for Clients in Mecklenburg County
If you are considering filing for divorce or if you are going through a divorce, the professionals at Myers Law Firm are here to help. From determining child custody to dividing personal property, our team of professionals is prepared to answer any questions you may have and guide you through every step of the process. While we pride ourselves in handling divorce issues peaceably and efficiently, we are dedicated first and foremost to protecting and advocating for your rights.
To schedule your initial consultation with an experienced family law attorney, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or contact us online using our online contact form.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.