The dissolution of a marriage is a time-consuming and complex process that involves sensitive personal matters and financial considerations. There is a high level of emotion involved, as well as complicated family dynamics, which makes this a challenging situation, so it is imperative to be prepared for any outcome. Knowing the basic process to file for divorce is a good place to start when considering making a separation permanent.
How to File for Divorce in North Carolina
In North Carolina, you can be legally separated without filing a written document simply by living in different homes with the intention of being permanently separated. A legal separation doesn’t entitle a person to remarry. However, a legally separated spouse can obtain court orders for many of the same issues as those pursuing a divorce, such as asset division and post-separation support. However, if your case involves children, an abusive ex, or a complicated property division, then filing for divorce is the best option.
Establish Residency & Separation Requirements
The first step to filing for divorce is to make sure you meet the North Carolina residency requirement, which states that either you or your spouse has to currently live in North Carolina and must have lived in the state for at least six months before the divorce case is filed. Additionally, you’re only eligible to file for an “absolute divorce” after being separated for at least a year and a day.
To file for a divorce in North Carolina, you must have been living in different homes and be able to establish that the separation was intended to be permanent. You’ll need to provide your truthful testimony to the court under oath to prove that you've been separated for at least a year. You can also present witnesses or documents or show the settlement agreement between you and your spouse.
Negotiate a Settlement Agreement
Ideally, you and your ex would negotiate and create a settlement agreement before filing official papers with the court, but sometimes negotiation is only viable after attaining an attorney. No matter at what stage a settlement agreement occurs, it’s important for people to disclose accurate and up-to-date financial information with their spouse & begin establishing a solid co-parenting relationship. To finish a divorce, you’ll need to determine how to divide property and debts, if anyone will pay spousal support, and how you will support your children.
The fastest way is to work with your spouse to reach an agreement. You can do this over the phone or email or get help from a mediator. If you can’t agree, you can ask the court to decide, which may result in a hearing where a judge will decide the issues in your case. If your spouse never filed a response and the two of you don’t have a standing agreement this is a default divorce. In the case of a default divorce, you can tell the court in writing what you want without your spouse’s input, which the court will then review and issue a final judgment.
File a Divorce Complaint
Because a divorce is essentially a lawsuit, you must “sue for divorce” in North Carolina. To file for divorce, you must file a complaint with your local Clerk of Court, which states the facts of your case and the request for the dissolution of the marriage. Be advised that the courts don’t provide a standard for the complaint, so any issues regarding spousal support or property division must be included in the original filing. Make sure to attach all supporting documents to your complaint along with a civil summons that notifies your spouse of the case. If either party is in the military, the filing party will need to also submit an affidavit pursuant to the Servicemembers Civil Relief Act (SCRA).
Additionally, you’ll need to submit a signed and notarized verification, which attests to the authenticity of the divorce complaint. The filing party will need to pay the clerk’s office a filing fee to submit the complaint officially. To apply for a fee waiver, go here.
Serve the Papers
Once you’ve filed the forms, the next step is to share the documents with your spouse or domestic partner through a specific process called serving papers. The case can’t move forward until the other person has received a copy of the complaint. Under North Carolina law, the petitioner is not allowed to serve the papers directly to their spouse, and there’s a required 30-day wait before you can schedule a hearing. An adult who isn’t involved in the divorce case can serve divorce papers, such as the local sheriff’s office, a licensed process server, and a friend or relative. The complaint can also be served by mail as long as you provide proof to the court that all procedural rules were complied with via an Affidavit of Service by Certified Mail.
Regardless of how the papers are served, you’ll need to complete and file a Notice of Assignment Card with the court. In some extenuating circumstances where you can't locate the responding party, you may serve them by newspaper publication, though specific requirements apply. During the service waiting period, your spouse may file an answer to the complaint, which generally contests or validates the facts of the original complaint. Depending on the responding party’s answer, you may have to renegotiate the terms of the proposed agreement or continue to the final step in the divorce process.
Obtain a Final Judgment
In North Carolina, the final step in a successful divorce is to obtain a Final Judgment. The Final Judgment contains the court’s final ruling and order that seals your settlement agreement as a binding contract. If disputes remain between you and your ex, the judge may request testimony and additional evidence to review at a divorce hearing. Otherwise, if both parties are in agreement, the judge will likely enter a summary judgment to accept the settlement agreement and grant the dissolution of the marriage. After the judge enters the final judgment, the filing party must file three copies of the document at the Clerk of Court’s office to be officially divorced.
How Property is Divided in a North Carolina Divorce
North Carolina is considered an equitable division state, which usually means a judge will order that marital property be split 50/50. However, a fair distribution is not always the case. There are many factors that can impact how property is divided. In North Carolina, you can file a complaint for equitable distribution to request considerations of child custody, alimony, and child support. Marital assets and debts include everything the couple acquired, both individually and together, during the marriage, such as retirement benefits. Property is considered separate, or nonmarital, if a spouse owned it before marriage or acquired it as a gift or inheritance, such as assets that the couple defined in a prenuptial agreement. There’s also the third category of “divisible property,” which applies to property obtained between separation and divorce. Divisible property may be divided between the parties depending on the circumstances.
North Carolina Divorce FAQs
Although North Carolina has attempted to streamline the divorce process, getting a divorce is a stressful situation that can impact your finances and emotional well-being long after the papers are signed. Many couples can avoid the high cost of lawyer fees if they’re willing to work together toward a mutually-beneficial settlement agreement. While a divorce can take anywhere from one month to multiple years of arbitration, ensuring your submitted court documents contain the specific terms of your arrangement will save you time and money.
How long does a divorce take in North Carolina?
After the requisite separation period, uncontested divorces take at minimum 30 to 60 days to finalize. Contested divorces, on the other hand, are much more challenging to estimate. On the lower end, people can expect a contested divorce to take at least a year or more to finalize.
How much does a divorce cost in North Carolina?
If you’re filing on your own, you can avoid many of the high costs of legal representation. The fee for filing a divorce case is $225, with a $30 fee for the Sheriff to serve the Defendant of $7 to serve by certified mail. If you include a claim for the reinstatement of your Maiden Name, there may be an additional $10 fee. For those who’ve retained an attorney or share children, the average cost jumps substantially. According to a study, the average cost of divorce with children is nearly $20K in North Carolina, whereas couples without children may spend closer to 13K.
Can you file for a divorce online in North Carolina?
Yes, you can file for divorce online in North Carolina. The North Carolina court system has an e-filing portal where you can file electronically. In three steps, you can submit your case filing through Tyler Technologies, a private company that offers a free “Guide and File” online service that provides user-friendly forms preparation. People can prepare their required forms by answering a series of simple interview questions. Once completed, you can print the forms and file them with the court.
Do you have to determine fault in a North Carolina divorce?
North Carolina is a no-fault state, which means neither party has to prove fault to be granted a divorce. North Carolina also allows couples to execute a divorce without legal help.
How long after a divorce can you remarry in North Carolina?
Once you have the finalized divorce documentation, you can pick up a new marriage license at any time. North Carolina doesn’t have a waiting period for folks to remarry, but bring your certified divorce paperwork to the courthouse to avoid complications.
Can I get divorced without my spouse present in North Carolina?
Yes, as long as you meet the separation and residency eligibility requirements for a divorce, you can get divorced without your spouse signing any documents or being present at the hearing.
Can I get a divorce while pregnant in North Carolina?
In North Carolina, the law assumes that the current husband is the father of a child conceived within a marriage, even during the separation period. Due to this rebuttable presumption, it’s extremely important to establish paternity with the court to ensure your divorce can move forward when the baby is born. While there’s no specific law against getting an absolute divorce while pregnant, a judge may decide to wait until after the baby is born to finalize a settlement agreement.
Are North Carolina divorce records public?
Yes, the North Carolina courts consider divorce records to be public documents and accessible online and via valid records requests. To find copies of divorce records dating all the way back to 1958, you can search the NC Vital Records through your local county clerk.
Legal Resources for Getting a Divorce in North Carolina
In North Carolina, most of the forms you’ll need to file for divorce can be accessed online, and there are many resources for folks who need support beyond filing court documents. Before you make any big decisions about representation or a settlement agreement, research your local ordinances and speak with the local county clerk to avoid making clouded judgments that can profoundly affect your financial future. The Legal Aid of North Carolina is a valuable resource for those looking for specifics about the type of forms and aid available to them.
If you’re dealing with a simple or uncontested divorce, you can avoid the high cost of attorney fees by doing it yourself. In 2019, the North Carolina Equal Access to Justice Commission created a divorce packet to help guide folks through filing for divorce without legal representation. These are only educational forms, but they are a good starting point for understanding the legal process.
Spanish-Speaking Divorce Videos
For Spanish speakers needing legal assistance, there are brief videos about divorce and navigating the court system in Spanish with English subtitles.
Legal Aid of North Carolina
If money is a barrier to getting legal assistance or you’re separating from an abusive partner, then the Legal Aid of North Carolina has resources to receive advice or assistance. You can call them at 1-800-219-5262 or apply online directly with their easy-to-follow interactive application that walks people through the intake steps. You can also register for their free simple divorce clinic, which teaches participants how to file a simple divorce action in court without an attorney. At the end of the instructional video, participants can ask general questions to a volunteer attorney through the webinar. Though, specific legal advice is not provided at these clinics.
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