As experts in family law, at Charles R. Ullman & Associates, we recognize the difficulties someone preparing for a divorce may encounter.
We leverage our extensive experience to assist you in navigating the complex divorce process. We strive to provide you with the necessary assistance to make the best possible choices for your future.
North Carolina falls under the category of “no-fault divorce” jurisdictions. In other words, you’re not required to demonstrate spousal misconduct, such as infidelity, abusive conduct, financial irresponsibility, or chronic intoxication or substance abuse, to secure an absolute divorce in our state. Instead, you’re required to prove one of two conditions: a one-year separation period or irreparable mental illness.
Our team of dedicated divorce attorneys at Charles R. Ullman & Associates, based in Raleigh, NC, can assist you in ascertaining your eligibility for a North Carolina no-fault divorce on these grounds, whilst clarifying the significance of hiring a lawyer.
We possess the necessary expertise, experience, and empathy to help you achieve your objectives. We invite you to have a private conversation about your situation.
Reach out to us today, or use our online platform to arrange a free confidential consultation at our offices, located in the historic Wyatt House in the heart of downtown Raleigh. We proudly provide services to clients across Wake County.
Overview on Divorce Proceedings in North Carolina
Divorce is not only emotionally difficult, it is a complex process. To ensure you understand all your legal options, you should speak with an experienced Raleigh divorce attorney. There are several concepts specific to North Carolina you should know before you begin your divorce process.
What to Know to Get Started in the Divorce Process
The decision to end a marriage is tough, particularly when children are involved. Once the decision is taken, you may need to know what is involved in the process by receiving help from someone who understands family law. When you work with Charles R. Ullman & Associates, our dedicated Raleigh divorce attorney will stand by you every step of this process.
- 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.
Ground for Divorce Proceedings in North Carolina
In order to initiate an absolute divorce process in North Carolina, a couple must have lived separately for a period of one year, with at least one party having resided in the state for a minimum of six months. The criteria for this form of divorce comprise two distinct elements:
1. Living Separately
For a divorce to be granted in North Carolina, the spouses must have lived separately and independently for an entire year. Simply occupying different rooms or portions of the same residence does not fulfill the criteria necessary to institute divorce proceedings. It is critical to note that if the couple recommences their marital relationship or reconciles, the one-year duration resets.
For instance: You may separate from your spouse for nine months, reunite, and then separate once more. In this case, you must live independently for the next 12 months or one year, to meet the requirements for an absolute divorce. The prior nine months of separation are disregarded.
What does reconciliation entail?
Reconciliation may vary depending on the specific circumstances. A single reunion may not be interpreted as reconciliation, but frequent ones could be. If you publicly present yourselves as a married couple, it could be classified as reconciliation.
The starting date of your separation carries significance. Besides initiating the one-year timeframe for the divorce process, it could also be used as the reference point for assessing the value of your marital assets during property division.
2. Residency Requirements
One prerequisite is that at least one spouse must have established a physical presence in North Carolina and demonstrated the intent to stay indefinitely in the state for a minimum of six months preceding the divorce filing. This is referred to as residency.
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.
Regulations on Property Distribution and Divorce in North Carolina
A crucial element of divorce proceedings involves the reallocation of marital assets and liabilities. In North Carolina, this can be resolved through one of three ways:
- A separation agreement (mutually agreed upon and signed by both spouses),=
- An equitable distribution court order (as decreed by the court),
- A consent judgment (agreed upon by the spouses and endorsed by the court).
The process of distributing marital assets involves three primary steps. Firstly, all assets need to be identified and categorized as either separate or marital. Secondly, a monetary value must be assigned to each asset. Lastly, the assets should be divided either fairly or equally.
In North Carolina, the courts lean towards a balanced 50/50 division of debts and assets. They take into account various factors when deciding the distribution of marital assets. However, marital misconduct is not a factor considered, unless the misconduct has depreciated the value of the marital estate, like imprudent expenditure or the concealment of financial accounts.
Alterations to Tax Obligations Post-Divorce
When crafting your separation agreement, our experienced divorce attorney will take into account the probable tax implications arising from the division of assets and the worth of the property you acquire. If the marital property is sold to distribute the proceeds, capital gains tax could be applicable.
When it comes to divorces involving children, it must be determined which parent is eligible to claim them as dependents on their tax forms. In some scenarios, parents may alternate years for claiming, which should be outlined in the separation agreement.
A spouse receiving alimony is obligated to pay taxes on that income, while the spouse making the payments can claim a deduction. However, child support payments are neither tax-deductible for the payer nor taxable for the recipient.
Legal Implications for Children During a Divorce
The principal concern for most parents undergoing divorce is the impact it will have on their children. Ensuring the emotional and material welfare of the children is paramount when establishing the terms of a separation or settlement agreement.
Child support payments aid in catering to the children’s financial necessities. The stipulations of child custody in a parenting agreement can assist in guaranteeing that children have ample time with both parents. Whether the custodial parent remains in the marital home can influence the children’s sense of security and stability.
In the context of North Carolina divorces, one parent usually obtains physical custody of the child, while the other is granted visitation rights. This is among the most emotionally challenging aspects of divorce, as both parents desire to maximize their time with their children and have an influence on decisions impacting their lives. If child custody is disputed, the court will make a decision based on the child’s best interests.
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.
Your retirement plans may change substantially after your divorce.
In North Carolina, pets are considered property, so you may need to work out pet custody arrangements in the divorce process.
Our Compassionate Divorce Attorneys in Raleigh Are Here For 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.
Frequently Asked Questions
To begin a case for Absolute Divorce, you will need to complete following forms:
- Complaint for Absolute Divorce
- Domestic Civil Action Cover Sheet (AOC-CV-750)
- Civil Summons (AOC-CV-100)
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:
- Notice of Hearing
- Judgment of Absolute Divorce
- Waiver and Answer (optional)
- Affidavit of Service of Process by Registered or Certified Mail (optional)
- Certificate of Absolute Divorce (DHHS 2089/Vital Records). You will get this form from the courtroom clerk when you attend court for your divorce hearing.
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 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.
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.
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
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.
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.
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.
“Dori, a stay-home mother of six children compares her divorce to “open heart surgery with no anesthesia.” The only good thing? She had people at her side, including the lawyers of Charles Ullman & Associates, who helped and encouraged her through the traumatic event. “My case was resolved as peacefully as possible,” she said. “I’m just so grateful.”