Frequently Asked Questions

Table of Contents

·        Can I file for divorce?

·        Can I get the marriage annulled?

·         What should I do after my spouse and I have separated with the intention of divorcing?

·         How is a Divorce Started?

·         What do I do when my spouse files for Divorce?

·        Who gets custody of the children?

·        What about alimony and child support?

·        How is the property divided?

·        Can I go back to my maiden name?

·        How long does a divorce take?

·        When is the divorce final?

 

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Can I file for divorce?

There are now only two grounds for divorce in North Carolina. All fault grounds have been abolished.

1. Separation for One Year

If a husband and wife have separated with the intent of ending their marital relationship and have lived separate and apart for one year without resuming their marital relationship, either may file for divorce, provided one of the parties has been a resident of the state for at least six months. Spouses living in the same house are not living separate and apart.

Whether there has been a resumption of the marital relationship during the separation period will be determined by all of the circumstances. Isolated incidents of sexual intercourse during the separation period will not be considered a resumption of the marital relationship.

2. Incurable Insanity

Where a husband and wife have lived separate and apart for three years (without cohabitation) because of the incurable insanity of one of them, the sane spouse may petition for divorce.

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Can I get the marriage annulled?

Unlike a divorce that dissolves a valid marriage, an annulment is a legal decree that a marriage never occurred. Annulments are rare and only granted in unusual circumstances. For example: a marriage between two persons, one of whom is legally married to another, is bigamous and void and can be annulled by court action.

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What should I do after my spouse and I have separated with the intention of divorcing?

Long before the year expires you should try to resolve the questions of alimony, child custody, child support and division of property. These are complicated questions that require the advice of counsel. If you and your spouse can agree on the resolution of the issues, a separation and property settlement agreement is an effective tool. To be valid, a separation agreement must be in writing and meet certain other requirements. If you cannot agree, you may need to seek assistance from the courts.

The proper court can, if necessary, make temporary decisions about:

·         Custody of minor children.

·         Restraints to keep your spouse from interfering with your personal liberty.

·         Who will live in the home you and your spouse formerly shared.

·         Support payments for a spouse or children.

·         Limitations of disposal of property to ensure payments of support or to protect a spouse's share in that property.

·         Allocation of the possession and use of certain property.

·         Visitation rights to the spouse who does not have physical custody of the children.

·         Other temporary orders authorized by law.

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How is a Divorce Started?

A formal document, called a Complaint, is filed with the appropriate court. The complaint includes information on the marriage, residency, present living arrangements, children of the marriage, and the specific ground claimed for seeking divorce (e.g., one-year separation). A copy of the complaint must be lawfully served on the other spouse (usually by sheriff's delivery or certified mail return receipt requested).

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What do I do when my spouse files for Divorce?

You should consult a lawyer promptly for advice. You may lose rights if you do not act to protect them. You may contest the reason claimed for the divorce, or you may contest (or need to counter-sue for) child custody, support, alimony, and/or property division by filing the proper papers and appearing in court.

The case will be decided without your appearance if you do not contest any portion of the complaint and if you do not wish to say anything to the judge. However, you will be bound by the decision of the judge, whether or not you appear in court. Failure to follow court orders could result in a citation for contempt of court.

Claims for equitable distribution (property division) and alimony must be dealt with before a divorce judgment is entered or these rights are lost. You may wish to contest or ask for equitable distribution and/or alimony and you must file legal pleadings to do so.

Whether or not you contest any part of the divorce, you may wish to consult an attorney immediately for professional advice on legal problems, the choices you can make, and the consequences of your actions or your failure to take any action.

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Who gets custody of the children?

The welfare of minor children is of major concern to the courts. Property rights and welfare of the adults involved are secondary. Neither parent is automatically entitled to custody of any child. The judge may consider many factors in deciding what custody arrangement is in the best interest of a child.

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What about alimony and child support?

Alimony is spousal support. In North Carolina, alimony can be obtained only when the financially dependent spouse can demonstrate that the supporting spouse has committed marital fault. Because of the complexity of the grounds for alimony, an attorney should be consulted regarding any questions about them.

To obtain alimony, a spouse will have to show (1) that the breakup of the marriage was essentially the fault of the other spouse, (2) that he or she is essentially without fault as to the breakup of the marriage, and (3) that he or she is actually and substantially dependent upon the other spouse for support. A spouse seeking alimony can be held responsible for misconduct even after the separation of the parties and until there is a final resolution of the alimony claim. A claim for alimony is forfeited if it is not put forward before a divorce is granted.

North Carolina law requires both parents to assume financial responsibility for the rearing of their children, and if agreement on the question of child support cannot be reached by the two parties, the presiding judge will make the decision based on evidence submitted to the court. Either spouse may claim child support in the divorce action.

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How is the property divided?

North Carolina law now declares that all property, including real estate and some pensions, accumulated during the marriage by the parties' efforts (exclusive of gifts and inheritances) shall be divided equitably between the parties, regardless of which party holds title or ownership to that property. The division of property will be equitable, which is not necessarily equal.

Parties may resolve property questions by entering into a written agreement at any time before or during separation. However, if property questions are not settled by written agreement, a claim for equitable distribution must be filed with the court prior to the granting of a divorce or rights to an equitable distribution of property will be forfeited. You should consult an attorney about these very important and complex property issues. If the parties cannot agree upon the division of property, the law provides the means of bringing the issue before the court, which will divide all of the property in such manner as it finds to be equitable.

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Can I go back to my maiden name?

A woman who is divorcing her husband may resume her maiden name or the name of a prior husband by requesting this change in the divorce proceedings. If she wishes to resume her maiden name at some date before or after the divorce settlement, she must petition the court for the restoration of her name.

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How long does a divorce take?

The time needed to complete a divorce action depends upon many factors, including the degree to which you and your spouse may have agreed on many matters and the backlog of cases in your county. You cannot file a request for divorce until you and your spouse have lived separate an apart for one year.

If both spouses have agreed on all aspects of the divorce, and if grounds for the divorce exist, a judgment of divorce will usually take three months or more after the divorce complaint is filed. If aspects are contested, a final decision may take a much longer period of time.

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When is a divorce final?

A divorce is granted when the judge issues a judgment, declaring that the marriage has ended under the laws of North Carolina. After the divorce is final, changes in some arrangements (custody, visitation rights, amounts of support, etc.) may be reconsidered if either party can demonstrate changed situations to a judge.

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The information here was compiled by the North Carolina Bar Association.