North Carolina is a No-Fault Divorce State
North Carolina is a “no-fault divorce” state. This means that you do not need to prove marital fault such as adultery, cruel and abusive behavior, economic fault or habitual drunkenness or addiction in order to obtain an absolute divorce in our state. Instead, you need to establish one of two grounds: separation for one year or incurable insanity.
At Charles R. Ullman & Associates, our law firm’s Raleigh, NC Divorce attorneys can help you determine whether you qualify for a North Carolina no-fault divorce on either of these grounds. We can also help with the paperwork and all other aspects of the divorce process.
We have the skill, experience and compassion it takes to meet your goals. We welcome the opportunity to have a confidential discussion of your case. Call us today or use our online contact form to schedule a confidential consultation at our office in the historic Wyatt House in downtown Raleigh. We serve clients throughout Wake County.
Tips from Our Raleigh Divorce Attorneys
It is important to be informed about the documentation you should gather before you proceed with your divorce, and about what information your spouse may use against you. Our experienced attorneys will help you better understand how each of these factors plays a role.
Consider your social media presence. Any information on your social profiles, such as Facebook, Twitter and Instagram, can be used as evidence against you.
There are specific steps to the division of marital assets. Our attorneys will help you understand this process so you can get an equitable distribution of assets in your divorce.
There are several factors to determining distribution of marital debt, and we’ll make sure you understand them all.
In North Carolina, pets are considered property, so you may need to work out pet custody arrangements in the divorce process.
Want to Get A Divorce? What’s Next?
The decision to end a marriage is not an easy one to make, particularly when children are involved. Once the decision is made, you may need to know what is involved in the process you are facing. It may also help to know that, when you work with Charles R. Ullman & Associates, our dedicated divorce attorney will stand by you every step of the way.
- North Carolina is a no-fault state, which means that you do not need to prove marital fault in order to obtain a divorce. You do have to live separately and apart for at least one year with the intent of permanent separation before you can get a divorce.
- Our firm can prepare a separation agreement containing the terms of your divorce, to be signed by both spouses when you separate. The agreement will address issues such as property and debt division, child custody, child support, visitation, and spousal support.
- After a year of separation, you may file for divorce with the court. Our firm can prepare and file the paperwork for you and arrange for your spouse to be served. You must wait 30 days (40 in some cases) after service to request a hearing, during which time period your spouse may file an answer to your complaint with the court.
- You should personally attend the hearing, as the judge will have final say over the terms of your divorce. The judge’s decision will make your settlement agreement (possibly modified by the judge) into a binding legal agreement.
What Are the Grounds for Divorce in NC?
If you have lived separate and apart from your spouse for at least one year, and at least one of you have lived in North Carolina for a minimum of six months, you can file for an absolute divorce. Let’s take a closer look at the two elements for this type of divorce:
1. Separate and apart
To qualify for a divorce in North Carolina, you and your spouse must have actually lived separate and apart for the full year. Merely living in different bedrooms or different areas of a house would not meet the elements to constitute the grounds for a divorce. In North Carolina, if you resume marital relations with your spouse, or reconcile, it will restart the one-year period.
For example: You may live separate and apart from your spouse for nine months, reconcile and then separate again. You would need to remain living separate and apart for the next 12 months, or one year, to qualify for an absolute divorce. The nine months would not be counted toward the separation period.
What is reconciliation?
It depends on the circumstances. An isolated reunion likely wouldn’t be deemed reconciliation, but multiple ones likely would. If you hold yourselves out as married to the public, it would be considered reconciliation.
The date that your separation starts is important. It not only begins the one-year period for obtaining a divorce, but it also may serve as the date that’s used to place a value on your marital assets when you are dividing property.
To qualify, at least one spouse must have established residency in North Carolina for at least six months immediately prior to filing for the divorce. Residency means having an actual physical presence in the state and the intent to remain in the state for an indefinite time.
How Does Mental Illness or Insanity Play a Role in Divorce?
If you and your spouse have lived separate and apart for at least three years due to the spouse’s “incurable insanity,” you may qualify for a no-fault divorce as well. What constitutes incurable insanity? Under North Carolina law, this means that the spouse was either adjudicated insane within the three-year period, institutionalized for that period or can otherwise be deemed to be incurably insane.
Also, you will need to present expert testimony. At least two doctors must testify that the spouse’s insanity is “incurable.” And at least one of those doctors must be a psychiatrist at one of the state’s four-year medical schools.
What Are the Laws about Property Division and Divorce in NC?
One very important aspect of divorce is the division of marital assets and debts. This can be settled one of three ways in North Carolina:
- Separation agreement (agreed upon and signed by both spouses)
- Equitable distribution court order (as determined by the court)
- Consent judgment (agreed upon by the spouses and ordered by the court)
Dividing marital assets is basically a three-step process. First, all assets must be identified and classified as either separate or marital. Second, a value must be attached to each asset. Third, the assets must be distributed fairly or evenly.
The courts favor an equitable 50/50 split of debts and assets in North Carolina. They consider various factors in determining marital asset distribution, but marital misconduct is not one of them, unless it was misconduct that lowered the value of the marital estate, such as reckless spending or hiding financial accounts.
What Are the Changes to My Taxes after Divorce?
In preparing your separation agreement, our seasoned divorce lawyer will consider the tax consequences likely to result from the division of assets as well as the value of the property you receive. If the marital home is sold in order to split the proceeds, for example, capital gains tax might apply.
When children are involved in divorce, it needs to be determined which parent will be allowed to claim them as dependents on their tax return. In some cases, parents alternate years, which would need to be specified in the separation agreement.
A spouse receiving alimony must pay taxes on that income, while the paying spouse is allowed to deduct the payments. Child support payments are neither deductible for the payer nor taxable for the payee.
What Are the Legal Concerns for My Children in a Divorce?
The number one concern for most divorcing parents is the effect the divorce will have on their children. Their emotional and material well-being is a top priority in working out the terms of a separation or settlement agreement between spouses.
Child support payments can help provide for the financial needs of the children. Child custody terms in a parenting agreement can help ensure that children are able to spend as much time with both parents as possible. The decision as to whether the custodial parent remains in the marital home can affect the children’s sense of security and stability.
Typically in North Carolina divorces, one parent will assume physical custody of the child while the other has visitation rights. This is one of the most emotionally charged areas of divorce, as both parents want to spend the maximum time possible with their children and have a say in decisions affecting their lives. In cases when child custody is contested, the court will decide based on the best interests of the child.
Helpful Resources for a North Carolina Divorce
An Experienced Raleigh, NC Divorce Lawyer Can Help You
Because neither party has to prove marital fault in order to obtain the divorce, “no-fault divorce” grounds generally are the most straightforward and easiest to prove. However, as you can see above, there are still nuances involved in the process. That’s why it’s important to work with an experienced Raleigh, NC divorce lawyer when seeking such a divorce. Additionally, matters related to a divorce need legal attention. For instance, you must assert your rights to alimony and equitable distribution of your property before a divorce is finalized.
At Charles R. Ullman & Associates, we recognize that when it comes to divorce, the consequences for you and your family are quite serious. We’re here to help. Learn more about how to choose an attorney to represent you. If you would like more information, or to schedule a confidential consultation with our Raleigh divorce lawyers regarding your no-fault divorce options, contact us by calling us toll-free or by filling out our online contact form.
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Frequently Asked Questions
In North Carolina, the grounds for divorce are that the couple must have lived apart for one year and that one party must have resided in North Carolina for six months prior to the filing of the divorce petition. You can also apply for divorce on the basis of a spouse’s incurable insanity.
In a contested divorce, the spouse seeking to end the marriage may obtain a legal separation. Also known as a divorce from bed and board, a legal separation requires establishing the defending spouse committed at least one of six acts:
- Abandoned the family
- Threw the complaining spouse out of the home
- Endangered the complaining spouse’s life
- Engaged in behavior that has made the spouse’s life “burdensome”
- Regularly used alcohol or drugs excessively
- Committed adultery.
As of September 2020, the fee for filing a case for divorce in North Carolina is $225. It will cost an additional $30 to have the Sheriff serve the defendant or $7 to serve the defendant by certified mail.
The biggest divorce expense will be your attorney’s fees, which are charged at an hourly rate. Average fees in North Carolina in 2020 ranged from $230 to $280 an hour. Those rates are close to the national average rates for family lawyers. The number of hours required to handle your divorce will depend on the complexity of your case, with a contested divorce requiring more time.
North Carolina is a no-fault divorce state. There is no need to establish marital fault to obtain a divorce in North Carolina. A divorce requires only that you have lived apart from your spouse for at least 12 months. You may obtain a divorce in North Carolina if you and your spouse have lived apart for at least three years due to the spouse’s “incurable insanity.”
To obtain spousal support or alimony, one spouse typically must demonstrate that he or she has been substantially dependent upon the other spouse for financial support. Support may be negotiated as a lump sum or recurrent payment as part of a divorce settlement.
If a spouse’s request for maintenance goes before a judge, the judge will consider several factors, including:
- The duration of the marriage
- The accustomed standard of living
- Marital misconduct by either spouse
- Relative earnings and earning potential of each spouse
- Amount and sources of earned and unearned income of each spouse
- Assets and liabilities of the spouses
- Physical, mental and emotional age and condition of each spouse
- Contribution of one spouse to the education, training or earning power of the other.
Many women change their last name when they divorce. Anyone can petition a judge to legally change their name. While you are in the process of getting a divorce, you can make your request for a name change part of your divorce petition.
Changing your name as part of your divorce requires completing the “Divorce” section of a special proceedings form, Application/Notice of Resumption of Former Name, and filing it with the Clerk of Superior Court in the county where you live. There is a fee, which varies from county to county, but is about $100. North Carolina law allows a woman to change her name as part of a divorce to either:
- Her maiden name
- The last name of a deceased husband
- The last name of a former living husband, if she has children who carry that last name.
An annulment is a court decree that voids a marriage. When a marriage is annulled, it is as if it never happened. It is available in North Carolina, but it is a complicated legal process with specific requirements that must be met. The length of the marriage is not a factor.
North Carolina allows annulments only under the following narrow circumstances:
- The two who married are closer by blood relation than first cousins
- The marriage was between double first cousins
- Either of the two who married was under age 16, unless allowed by a court order due to pregnancy
- Either of the two who married had a living spouse at the time of marriage
- Either of the two who married was physically impotent
- Either of the two who married was mentally incompetent or incapable of understanding the marriage vows. This may apply to one or both spouses being impaired by alcohol or drugs at the time of the marriage.
A person in North Carolina is legally free to re-marry as soon as a judge grants an absolute divorce that ends their marriage.
If the terms of your divorce settlement are not yet finalized and there are decisions to be made about children you have together or significant property and/or debts to divide, you might consider the detrimental effect dating may have on
You may file for divorce in North Carolina after you and your spouse have lived apart for one year. You must also have lived in North Carolina for at least the six months prior to the date of your divorce petition.
Once you file for divorce, your spouse has 30 days to respond and can request an extra 30 days. Once the divorce petition and response are on record, you can schedule a hearing in front of the judge to hear the divorce.
An uncontested divorce can be obtained fairly quickly after you comply with the one year separation requirement. Contested divorces take longer. A divorce based on one spouse’s incurable insanity requires expert witnesses to establish the ill spouse’s medical condition, which adds to the length of that process.
Every divorce has factors that affect the length of time it takes. There are contested, uncontested, collaborative and simple divorces. Military divorces may have complications that take longer to settle.
An uncontested divorce may be completed in 45 to 90 days after the divorce complaint is initially filed. A divorce may take six months or longer if there are major disputes or you cannot locate your spouse.
After one spouse files for divorce, the other spouse has 30 to 60 days to respond. If that spouse fails to respond in time or does not dispute what you request in the divorce settlement, you are free to move forward with setting your divorce hearing. You may file a Notice of Divorce Hearing at least 10 days prior to a date for the hearing and mail it to your estranged spouse.
If there is a dispute, you can still schedule the hearing, but will need to be prepared to demonstrate that you have been separated for at least a year, which is required to obtain a divorce decree.
What typically delays a divorce is coming to agreement on distribution of marital assets, child custody and visitation, and payments for child support and/or alimony.
Divorcing spouses do not necessarily have to go to court. In an uncontested divorce, each spouse retains their own attorney and works out a settlement agreement. In some cases, a mediator will assist with discussions. If each spouse agrees to the terms of a divorce settlement, their attorneys can handle what is essentially paperwork processed before a judge.
However, if you and your spouse cannot agree on certain issues, then you will have to go to court and petition the judge to rule in your favor.
To file for divorce in North Carolina, you have to have lived in the state for at least six months prior to the date of your divorce petition.
There is no requirement for either spouse to live in North Carolina during divorce proceedings. However, to file for divorce you must have lived in North Carolina for at least the most recent six months prior to filing.
A divorce must be filed where either the spouse seeking the divorce or the other spouse resides. Though a member of the armed forces may be deployed outside the state of North Carolina, the service member still must have residency in the state to file for a divorce here. Being registered to vote in North Carolina, having a North Carolina driver’s license and/or paying state taxes help demonstrate permanent residency within the state.
If the out-of-state service member is the defendant in a divorce proceeding, there may be special considerations that waive the requirement to serve them overseas.
Under the Soldiers’ Civil Relief Act (SCRA), active duty members of the U.S. military who are defendants in a divorce may request a stay of the proceedings while on active duty or for a short period after returning from active duty.
A plaintiff files a divorce complaint with the Clerk of Court in the county where the estranged spouse lives. The local county Sheriff must have jurisdiction to serve notice of divorce on the defendant.
The complaint must contain a statement of facts to provide notice of the basis for the lawsuit, including a statement of where the party lives and has lived. The Sheriff will deliver the papers to the defendant and provide proof of service to the court.
To begin a case for Absolute Divorce, you will need to complete following forms:
You might need a Servicemembers Civil Relief Act Affidavit (AOC-G-250) or, if you cannot afford the court fees, a Petition to Proceed as an Indigent (AOC-G106).
Other forms you may need are: