Divorce in North Carolina is similar to getting a divorce in most other states. The procedure for getting one is governed by statutory law as well as case precedent, which is designed to interpret statutory laws.
Who can file for divorce in North Carolina?
Either the husband or wife who currently lives in North Carolina and has resided there for at least six months may file for divorce in his or her county of residence, or the county where the other spouse resides. North Carolina General Statutes do allow the court to move the divorce proceeding elsewhere if one spouse is out of the court's jurisdiction.
Must we be separated first?
The requirement of separation depends on whether the parties are seeking a no fault or a fault divorce. North Carolina General Statute §50-6 requires the parties to have lived "separate and apart" for at least one year along with at least one party to the divorce meeting the six-month residency requirement before filing an application for divorce. This is the process for getting a no-fault divorce. "Isolated incidents of sexual intercourse between the parties" will not freeze the separation time period for filing purposes. Separation is a requirement for a no-fault divorce but may not be a requirement under a fault divorce, since getting a fault divorce requires having grounds to do so.
How much does it cost?
There are a variety of factors to consider in the cost of a North Carolina divorce. It depends on the filing fees in your county along with the costs of a divorce attorney, and how cooperative each party can be with the court and one another. The filing fees in a North Carolina divorce vary from county to county, so make sure to find out from your local county courthouse. The costs of a divorce lawyer also vary, and most divorce situations cannot be handled effectively by a pro se party. A divorce lawyer's services can get more expensive if the divorcing couple cannot be civil to one another or more paperwork needs to be filed to get information that may not be given readily to one spouse.
How long will it take?
North Carolina law does not have a set minimum time limit for a divorce to become final. The length of the divorce process depends on the couple getting the divorce. If there are children, lots of marital property, hidden assets or liabilities for either party, contested alimony claims or other factors that could lead to fighting, the divorce is going to take much longer than it would for a shorter marriage among a couple without children who have very little property. While an exact time is difficult to apply generally, a divorce could take anywhere from a few months to years to become final.
Do I need grounds for divorce in North Carolina?
North Carolina does not require grounds for divorce. All 50 states allow couples to file for no-fault divorce.
Is it better if I have grounds for divorce?
Having grounds for divorce will only be beneficial to a plaintiff who is seeking alimony, since §50-16.3A allows the judge to consider marital misconduct in deciding how much alimony may be rewarded. If the plaintiff would not qualify for alimony from a spouse who engaged in conduct that provides grounds for a fault divorce, the plaintiff will not be more entitled or less entitled to get the divorce.
What are they?
The following grounds are allowed for a divorce from bed and board:
- Abandonment
- Maliciously turning the other one out of doors
- Cruel or barbarous treatment that endangers the other person's life
- Offering "indignities" to the other spouse that are so bad that life becomes "burdensome" and living in the household is "intolerable"
- Committing adultery
- Becoming an alcoholic or drug addict to such an extent that the other spouse's life becomes "burdensome" and living in the household is "intolerable"
Under §50-5.1, an absolute divorce in North Carolina may be granted if a spouse develops incurable insanity that results in the couple living separate and apart for at least three consecutive years. However, the requirements of living separate and apart and not engaging in cohabitation will not be destroyed if the insane spouse is released on a trial basis to the custody of his or her respective spouse, and will not prevent the court from granting a divorce based on the criteria of this statute. Grounds for divorce have to be proven in court and since it can be difficult to prove them, no fault divorce is much more common.
Can I get temporary support during the divorce?
You can get temporary support during the divorce if you move for this in the proceeding and the judge awards it to you.
What about spousal support or alimony?
Under §50-16.3A(a), either party can ask for alimony. This may be temporary support or it may last longer depending on the judge's discretion. Alimony is the same as spousal support and is available to either party if there is a showing that one spouse is a dependent spouse while the other is a supporting spouse, as well as a showing that an alimony award is equitable after considering all the relevant factors involved. The guidelines used to determine if an alimony award should be given include:
- Marital misconduct of either spouse
- Relative earnings and capacities of each spouse
- Standard of living during the marriage
- Contributions of the dependent spouse to the other spouse's education or training
How is marital property handled in divorce in North Carolina?
Under §50-20(c), marital property is divided equally between the parties unless the court finds that equal division would not be equitable. If this happens, the court will divide the property equitably. The factors for an equitable division are also governed by the factors listed in §50-20(c), which are similar to those considered for alimony awards.
How are retirement assets divided?
Retirement assets, vested or not, are included as marital property under §50-20. Division is governed under §50-20.1.
Can we reach a marital settlement agreement out of court?
A marital settlement agreement can be reached out of court. In fact, North Carolina law provides for family law arbitration through the Family Law Arbitration Act and allows for collaborative law proceedings if the parties are not seeking an absolute divorce.
What happens if we can't agree on settlement terms?
Arbitration is available for any issues arising from the divorce, except for the divorce itself, according to §50 41. This is to make the process go more smoothly and provide a way for the parties to resolve disagreements. Parties may be represented by their attorneys.
What are the child support guidelines in North Carolina?
Child support guidelines are established in §50-13.4 (c1). They only apply when the family makes less than $25,000 per month ($300,000 per year). The exact amount is determined by the number of children and the parent's monthly gross income. Those whose income is above the child support guidelines will have their incomes adjusted to ensure the child gets full advantage of that income. Children are entitled to support until they:
- Turn 18
- Finish primary or secondary school if the child is in school at 18
- Are emancipated
- Turn 20, graduate, etc.
Other Important Considerations in North Carolina Divorce Cases
Same-sex marriages are not recognized in North Carolina and there are no statutory procedures allowing for same-sex divorce. Therefore, you will need to seek a divorce elsewhere.
The family's previous standard of living with be considered in both alimony and child support awards.
Getting Legal Help
If you are seeking a divorce in North Carolina, it is important for each spouse to retain a North Carolina licensed family law attorney.
