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, 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 this element.
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.
Last Updated January 31, 2017
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