Frequently Asked Questions About the North Carolina Divorce Process
If you are going through a divorce in Raleigh or elsewhere in North Carolina, you will have many questions – especially if you have never been through the North Carolina divorce process before. To help you get a better understanding, Charles R. Ullman & Associates presents the following answers to frequently asked questions about North Carolina divorces.
However, keep in mind: Every family’s circumstances are different. It’s important to speak directly with a divorce lawyer in order to address the specific facts and legal issues in your case.
At Charles R. Ullman & Associates, we are available to meet with you. We want to learn about you and allow you to get to know us better.
We serve clients throughout Raleigh and Wake County. Simply give us a call or complete our online form to schedule a consultation today.
Divorce and Absolute Divorce
Divorce and Absolute Divorce
You do not need an attorney to obtain an uncontested divorce in North Carolina. But the divorce decree is only one of many issues that arise when ending a marriage. For those other legal matters, an attorney’s help is crucial.
Divorces can involve complex issues such as spousal support, asset division, child custody and child support. If you are assisted by a skilled and experienced attorney, it can help you to avoid personal and/or property matters that may cost you money down the road.
The attorney’s mission will be to keep you fully informed of your options and protect your best interests in resolving any complications that may arise in your North Carolina divorce.
This is why Charles R. Ullman & Associates does not advise going it alone in a divorce. Instead, contact a lawyer who can review your case, explain your rights and discuss ways to meet your goals.
If you would like to learn more about uncontested divorces in Wake County, you can check out the Wake County Clerk of Court’s website and learn about informational packets that the office provides.
You can obtain a North Carolina divorce whether or not your spouse wants to be divorced, provided that two conditions are met: you have been separated for one continuous year and the paperwork has been correctly processed.
It is not sufficient to merely declare that you and your spouse are separating. Separation means that each partner resides in a different household. Following the one-year separation, you are free to file for divorce immediately.
During your separation, however, it’s important to sort out how property, debts, custody and alimony are to be allocated not only when you’re living apart, but also when a divorce is officially granted. The terms you and your spouse agree to on these legal issues are entered into a legally binding separation agreement. Separation agreement terms are completely up to the two parties — a judge does not have to approve them. Once notarized, an agreement is valid.
Failure to negotiate a separation agreement means you are leaving decisions of child custody, alimony and property distribution up to the judge. Negotiating these matters beforehand has the added benefits of saving you money, time and aggravation.
The divorce attorneys at Charles R. Ullman & Associates can help you draft a separation agreement that fairly reflects your marital circumstances and protects your interests moving forward.
You may not realize it, but there are actually two types of divorce in North Carolina: “absolute divorce” and “divorce from bed and board.” An annulment of a marriage is also possible under certain circumstances.
Absolute divorce, you might say, is a “normal” divorce and the type of marriage termination that most spouses are seeking. Either party can obtain an absolute divorce in North Carolina. Once you and your spouse have lived separate and apart for at least 12 consecutive months, the divorce may be granted. You do not need any written documentation to show you separated on a given date. Instead, you merely need to remember the date on which you separated. You also need to be certain that at least one of you, at the time of the separation, intended for the separation to be permanent.
A divorce from bed and board (DBB) is technically not a divorce at all, but rather a fault-based type of legal separation. The six grounds for this type of “limited divorce” are based on injury and include abandonment, cruel or barbarous treatment and adultery. Any of these six grounds for DBB must be proven through evidence. If granted, DBB does not mean that the marriage is ended, so neither you nor your spouse may legally remarry. DBB is rare among civilians but more common in the military community as a means to suspend the duty of spousal support. It can also give legal sanction to one partner leaving the marital home (so the action is not seen as “abandonment”).
A final option to end your marriage is annulment. Annulment, available under limited grounds, means that the marriage was never valid in the first place, and so now is null and void. Annulments are typically difficult to obtain, so unless you have a compelling reason for wanting one, you are probably better off seeking an absolute divorce.
However you choose to end your marriage, it’s important that you speak with a Raleigh divorce lawyer who understands the law and has your best interests in mind.
Obtaining a divorce in North Carolina is not a complex process. However, you need to make sure that you meet certain requirements and follow important steps.
The requirements are:
- You and your spouse must actually live separate and apart for one year.
- Either you or your spouse must have resided in the state for six monthsbefore filing the divorce action.
Important steps that you will need to take include:
- You or your lawyer must file a divorce complaint with the clerk of court in the county of your residence (for instance, the Wake County Clerk of Court’s Civil Division).
- The divorce complaint must be served on your spouse (for instance, by certified mail or delivery by the county sheriff).
- Either you or your attorney must appear in court to obtain the divorce.
Once the judge signs the decree, your divorce is final. You may remarry if you so desire.
Please see our page on Steps for Getting a Divorce in North Carolina for more details about this process.
You can also check out the relevant North Carolina divorce statute and read about the Civil Division of the Wake County Clerk of Superior Court.
Because North Carolina is a “no fault” divorce jurisdiction, marital fault (i.e., infidelity) does not have to be proven by one spouse in order to obtain a divorce from the other. Divorce in North Carolina may be based on only one of two grounds. Divorce based on 12 months of separation is typical, and in rare cases, divorce is based on the “incurable insanity” of one spouse.
But despite not being a grounds for divorce, adultery has other ramifications for North Carolina divorces. Specifically, if one spouse is having an extramarital affair, it can impact the post-divorce settlement. It can also lead to a civil lawsuit against the cheating spouse’s lover.
If you are an adulterous dependent spouse (as proven by your husband), the court will take this into account and it may mean you will be denied alimony. On the other hand, if your husband cheated on you (and you can prove it), it could mean that you receive a greater alimony payment. A judge will similarly take adultery into account when deciding child custody and could find that it is inappropriate for the child to live with the spouse who cheated (although this is uncommon).
As one of the most legally unforgiving states in terms of adultery, North Carolina also allows a spouse whose partner cheated on him or her to file a civil lawsuit against the spouse’s lover. Compensable damages for mental anguish, loss of support and similar types of pain and suffering may be awarded. Again, you must prove adultery on the part of your spouse in order to file this type of civil suit.
To summarize, as long as you and your spouse have been separated for at least one year and your paperwork is correctly processed through the judicial system, you may obtain a divorce for any reason. The impacts of adultery on a North Carolina marriage, however, are potentially far-reaching. If you suspect that an extramarital affair has occurred while you were still married, you should discuss your legal options with a Raleigh divorce attorney.
Although it is legal in North Carolina to obtain a divorce without representation by counsel, the Raleigh divorce lawyers of Charles R. Ullman & Associates do not advise going it alone. Although a DIY divorce using court-provided documents, website information and other resources is possible, an attorney can best protect your interests, keep you fully informed of your options and help you avoid complications that could cost you money down the road.
Take the matter of spousal support (alimony), for example. In North Carolina, the court considers 16 separate factors when deciding the duration and amount of alimony, including things like how long the marriage lasted, the earnings and earning capacities of each spouse and each party’s accustomed standard of living. The court is supposed to make alimony decisions with fairness to all parties in mind, but it can be difficult to know what’s fair (and what isn’t), according to NC divorce law, unless you are an expert on those laws.
Complex issues can also arise in matters of asset division, child custody and child support. Did you know that North Carolina considers three types of property when dividing assets between spouses? Or that if there’s a custody dispute, either parent may request a custody evaluation?
The divorce law experts at Charles R. Ullman & Associates intimately understand all aspects of divorce and how they can work to your advantage. Without representation, you risk making mistakes that you could be paying for the rest of your life. Life isn’t always fair, but with help from an attorney, your divorce can be.
Evidence and Divorce
Evidence and Divorce
No, you don’t have to prove adultery to obtain an absolute divorce in North Carolina. We are considered a “no-fault” state. However, there are related matters where proof of adultery is could be important.
By “no-fault” state, we mean that you do not have to show marital fault to obtain the divorce in North Carolina. As long as you have lived separate and apart for one year, at least one of you has resided in the state for at least six months and you have completed all required paperwork, you can get a divorce. This type of divorce is called an absolute divorce.
However, to obtain a divorce from bed and board – some refer to this as “legal separation” – you do need to prove fault. Adultery is one possible ground. Other grounds include abandonment, cruel or barbarous treatment, indignities or alcohol or drug abuse. Although this type of divorce brings certain entitlements such as the right to receive spousal support, or alimony, you will not be entitled to remarry until you obtain an absolute divorce.
Additionally, marital misconduct such as adultery could be a factor in determining alimony.
Yes, your spouse may be able to obtain a subpoena that would demand your service provider to turn over those records (if they are still available). This is a hot issue right now in divorces.
Electronic evidence, including e-mails, text messages and Facebook and other social media pages, are increasingly being used in divorces in North Carolina and elsewhere. This evidence can be used for many reasons, particularly to establish marital misconduct such as adultery or to show alcohol and/or drug abuse (factors in alimony awards and child custody decisions).
Most service providers will require a subpoena before they turn over those records. However, these records may be more difficult to obtain as time passes.
We have written extensively on this subject on our Social Media and Electronic Evidence in Divorces page.
You should also read an interesting survey done by the American Academy of Matrimonial Lawyers (AAML), which identified electronic evidence becoming a divorce issue back in 2008.
Although the actual property distribution judgment (court ruling) can occur after the divorce, any claim for an equitable distribution of property must be made before the absolute divorce is granted. That makes it extremely important to contact a Raleigh divorce lawyer right away if you are planning to obtain a divorce. Failure to act now could mean you forfeit your right to a say in how marital property is divided.
First, it’s important to establish what is meant by “marital property”. The definition of this term, found under § 50-20 of the North Carolina General Statutes, is “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property to be determined as separate property.”
By statute, property means not only the marital home and other physical property, but also financial assets such as pensions and retirement. Any piece of marital property, however, may be rebutted as “separate” (not marital), by a preponderance of evidence. Separate property includes property acquired prior to marriage as well as gifts and inheritances. The court may ultimately decide which property is marital and which is separate.
Marital property, furthermore, also includes debts acquired during marriage and owned at the time of separation. If your spouse has significant debt that you do not want to be burdened with after divorce, you may prefer an unequal distribution.
Actually, equitable distribution is not automatic. It must be asserted by one (or both) parties. Depending on the assets and debts held by each party, unequal distribution might be in your favor. Left to the court, more than a dozen “equitable distribution factors” come into play when a judge believes that a non-50/50 split of marital property is fair. You can also agree to a 60/40, 70/30, or any other split of marital assets and debts (even 95/5) in a negotiated settlement.
Whether you prefer to make a claim for equitable distribution or you believe that such an arrangement is not in your favor, a North Carolina divorce lawyer can inform you of all your legal rights and options.
No – and we can’t stress that answer enough. Any claim you file for equitable distribution of your property must be made before the absolute divorce is granted. There are many reasons why this is important.
As a spouse, you are entitled to an “equitable” share of all marital property. Generally speaking, this is any property that either you or your spouse obtained after the date of marriage and before the date of the filing for divorce.
If the spouses can agree on the division of marital assets and debts, they can enter into a separation agreement, or what is sometimes called a “divorce settlement.” However, you will need to file for equitable distribution of property by the court if no agreement can be reached.
Additionally, you may want to file for an injunction that will prevent a spouse from tampering with marital property or an order that temporarily divides property such as a joint bank account before the final equitable distribution decree or settlement agreement is final.
Child Support and Spousal Support
Child Support and Spousal Support
Simply put – no. Child custody/visitation rights and child support obligations are two different matters. You need to keep paying child support. Meanwhile, you can take other steps to protect your right to spend time with your child. Child support is determined by either agreement of the parties in a divorce settlement or by a court order. If you stop making these payments, you could face a contempt of court charge, breach of contract lawsuit, garnishment of your wages or other consequences. So, continue paying (unless a job loss or other reason requires you to seek a modification of your child support obligations). If you have visitation rights, it is because a court agreed that it was in the best interest of the child. Whether they were stipulated to in a separation agreement or ordered by a court, your visitation rights must be honored by your spouse. In other words, unless a court finds that visitation does not meet the child’s best interest, you are entitled to visitation regardless of what your spouse wants. You can pursue contempt of court or contract remedies to enforce your rights if your spouse refuses to honor them. In many cases, this is a matter that can be resolved outside of court through negotiations between attorneys. To learn more, please see our pages on Child Support and Child Custody and the N.C. General Statutes on support and custody issues.
According to North Carolina law, “a judgment of absolute divorce obtained by the dependent spouse in an action initiated by him or her eliminates that spouse’s right to alimony unless a claim for alimony has been asserted and left pending prior to the judgment, either in that action or an earlier action.”
In other words, any spousal support (alimony) filing should be made before a divorce is granted. Failure to bring an alimony claim before the entry of a divorce judgment will bar the right to bring a claim for alimony afterwards. And before you decide to end your marriage, it’s crucial to seek legal advice and representation from a competent Raleigh divorce lawyer right away, as alimony awards are determined based on many factors.
The first factor to be considered is your financial dependence on your spouse. Under NC alimony law, you are typically considered to be “actually substantially dependent” if you can demonstrate that after the divorce you will be unable to maintain the standard of living established under your marriage without spousal support payments. Exceptions, however, notably an extramarital affair, can nullify your right to spousal support.
As for the duration and amount of alimony, North Carolina law lists 16 alimony award factors. They include both spouses’ earnings and earning capacities, the marriage duration and each spouse’s assets, debts and liabilities. Alimony, furthermore, may be paid in a lump sum or regular installments and for a limited or specified term.
Finally, if you are separated but not yet divorced from your spouse, you may still qualify for what’s known as post-separation support, which can provide you with money awards until a permanent alimony agreement is reached.
The different types of North Carolina alimony and how spousal support payments are determined are complex matters that legal help from Charles R. Ullman & Associates will help you understand. While your goal may be to maximize alimony, your spouse’s might be just the opposite, and we will fight to protect your interests.
To begin with, you need to understand the two types of separation that apply to North Carolina marriages.
Absolute divorce—the termination of a marriage—must be preceded in North Carolina by a separation of one year of living “separate and apart” (in two different households).
During this time, either spouse can request what’s known as “post-separation support.” Couples may work out privately the terms of this support (in what’s known as a “separation agreement”) if they can come to terms on it, or it can be left up to the courts to decide the amount and duration of alimony. The conditions of the post-separation support may continue when the divorce is finalized, or permanent alimony may be established for the post-divorce period.
Another type of separation, “divorce from bed and board,” is a legal separation, or “limited” divorce. While it does not allow the spouses to remarry, it does entitle the parties to certain “incidents,” such as alimony. You might consider a divorce from bed and board if the other spouse refuses to enter into a separation agreement. This type of divorce, though, is fault-based, so you must prove injury on one of six fault grounds.
In any type of separation, calculating the proper amount of alimony can be complex. Often, the other spouse will challenge the amount and/or offer legal objections. A Raleigh separation attorney can advise you of your rights and options and aggressively advocate for your interests throughout the separation and divorce processes.
If you agreed to pay alimony in a separation agreement or were ordered by a court to do so, then you need to keep making those payments. Otherwise, you could face serious consequences. Still, relief may be possible.
If you fail to make your spousal support payments, then you could face a contempt of court citation or a breach of contract lawsuit. So, when you find yourself struggling to keep up with these payments, you need to get legal help right away and address your situation.
An attorney can help you to seek a court order to modify your alimony payments due to a change in your circumstances such as a loss of employment. A lawyer could also seek to negotiate reduced payments with your former spouse’s attorney.
Parents can reach a child custody agreement out of court, and in most cases, they should. Otherwise, a court custody decision is left to the sole discretion of the judge, and appeals are very limited in these types of cases. Our Raleigh divorce lawyers have extensive experience negotiating these agreements, which are often reached with the assistance of a neutral facilitator/mediator. We will protect your parental rights and interests through the negotiation process and, if need be, in court.
Among the matters to be determined in a child custody agreement are physical and legal custody and visitation schedules. Physical custody refers to where the child actually lives, while legal custody describes who makes important decisions on the child’s behalf. In both cases, joint custody (in which the parents share the physical and legal responsibilities) is possible, and while the law presupposes that each parent has equal custody rights, the splits don’t have to be equal. When one parent is granted sole custody of the child, however, visitation privileges must also be determined.
Within the issues of custody and visitation are further legal nuances that need to be established in a written document. Child support, for instance, may be paid by one party depending on a variety of circumstances, while supervised visitation can be granted if one parent has questionable parental status. The two divorcing spouses may also wish to come to an agreement on a parenting plan, which describes how the parties will raise their child/children.
If you can’t reach an out-of-court custody arrangement, you will need to go to court, at which point the “best interest of the child” will be the primary consideration for all custody matters. Of course, your interests are also important, and you may be privy to information that shows your former spouse is not a good choice for custody or visitation.
However, even after the court reaches a final custody decision, a custody order may be modified. During and after custody agreement negotiations, Charles R. Ullman & Associates are here to serve your—and your child’s—best interests.
No, you do not need to be legally separated to obtain a North Carolina divorce. Still, you need to make sure that you meet the legal definition of “separation.”
State law mandates that you and your spouse must actually live separate and apart for at least one year before you are eligible to file for divorce. If you live in separate areas of the same house, this does not satisfy the requirement. If you live in separate houses but maintain the appearance of a relationship, this will not satisfy the requirement, either.
Additionally, if you reconcile with your spouse, the separation period ends. Isolated sexual intercourse with your spouse is not considered to be reconciliation. However, if you move in together, go out in public together and have regular sexual intercourse, it would likely be considered reconciliation.
You can read more about the separation requirement on our page about North Carolina divorces or our page on How to Prove You Are Separate and Apart in North Carolina.
No, you do not need to be legally separated to obtain a North Carolina divorce. Still, you need to make sure that you meet the legal definition of “separation.” State law mandates that you and your spouse must actually live separate and apart for at least one year before you are eligible to file for divorce. If you live in separate areas of the same house, this does not satisfy the requirement. If you live in separate houses but maintain the appearance of a relationship, this will not satisfy the requirement either. Additionally, if you reconcile with your spouse, the separation period ends. Isolated sexual intercourse with your spouse is not considered reconciliation. However, if you move in together, go out in public together and have regular sexual intercourse, it would likely be considered reconciliation.
Yes, you can have a relationship with another person while you are separated and waiting on your divorce to be final. But there are practical and legal considerations to keep in mind.
We’ll start with a practical consideration. After becoming separated and deciding on a divorce, you and your spouse may have entered into negotiations about a separation agreement. However, your spouse could become bitter if they learn that you have already started another relationship before the divorce decree is entered. This could create hostility and complicate negotiations on matters such as alimony or custody of your children.
There is also an important legal consideration. It is not against the law to date another person while still married. However, adultery does constitute a crime – actually, a Class 2 misdemeanor – under North Carolina law. (Many people are surprised to learn about this law).
What happens if my spouse and I reconcile briefly during the one-year separation, but still wish to obtain a divorce after one year?
It used to be the case in North Carolina that “getting together” (i.e., sexual contact) with a spouse during the one-year separation put an end to living “separate and apart.” Due to changes in the law during the 1980s, this is no longer the case, although the law and judicial precedent prescribe what does—and does not—halt the 12-month separation period required for divorce.
State law (§52-10.2.) explicitly notes that “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.” Instead, resumption of marital relations “shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” The “totality of the circumstances” may include, for example, whether you and your spouse have:
- Moved back in together
- Shared household duties
- Told friends and family that your problems are resolved
- Appeared in public together
It may also include seemingly minor details such as where your automobile, pets and other belongings are kept and how bills are paid as well as how long a (seeming) period of reconciliation lasts.
If you and your spouse resume marital status and cohabitate, however, you must wait until one year from the date of the second separation to officially obtain a divorce. While this may seem like a simple process, complicated issues involving child custody, child support, alimony and asset division can arise in divorce, which is why it’s important to have the assistance of a Raleigh divorce lawyer.
The “totality of the circumstances” may include, for example, whether you and your spouse have:
- Moved back in together
- Shared household duties
- Told friends and family that your problems are resolved
- Appeared in public together
It may also include seemingly minor details such as where your car, pets and other belongings are kept and how bills are paid as well as how long a (seeming) period of reconciliation lasts. If you and your spouse resume marital status and cohabitate, however, you must wait until one year from the date of the second separation to officially obtain a divorce. While this may seem like a simple process, complicated issues involving child custody, child support, alimony and asset division can arise in divorce, which is why it’s important to have the assistance of a Raleigh divorce lawyer.
Domestic Violence and Abuse
Domestic Violence and Abuse
Generally, domestic violence can be defined as one person in a relationship using verbal, sexual, physical or even financial abuse to control the other. It can occur in many forms.
Domestic violence may involve spouses, partners, parents and children, children and grandparents or brothers and sisters. It can involve people of different ages, races or genders.
The abuser may use threatening language, intimidating gestures or say things that are intended to denigrate and belittle the other. The abuser may also use sexual or physical violence to exact harm. Even controlling all of the relationship’s finances can be a form of abuse.
Please see our page on Domestic Violence for a list of questions you should ask yourself to help you determine if you are a victim.
The National Domestic Violence Hotline can also serve as a helpful resource.
A restraining order in North Carolina is actually called a “protective order” or “50B order” (after the statute it is found under). The process of getting one can be broken into six steps.
These steps are:
- Go to the courthouse and get the forms you need.
- Fill out a complaint.
- Fill out the summons.
- Seek an ex parte / temporary order.
- Attend the hearing.
- Extend or renew the order (if needed).
Please see our page on How to File a Restraining Order in North Carolina for a more detailed description of each of these six steps.
You should also visit the N.C. Administrative Office of the Courts website to find the county courthouse located nearest to you, where you will file for the order.
There is no easy answer or blanket answer to this question. You need to carefully evaluate your situation and come up with a safety plan that will work for you.
Whatever plan you decide on should help you to respond to a crisis and protect both you and your children. You should consider a safety plan that:
- Keeps you safe while still living in the home with your abuser
- Prepares you for leaving the home
- Shields you from your abuser after you leave.
No safety plan will be a full guarantee of your safety. However, by having one in place, you can certainly reduce the risk of harm.
Please see our page on Safety Plans for an extensive list of considerations. You can also reach out to a local domestic violence agency. The N.C. Coalition Against Domestic Violence is a good place to start.