North Carolina is a no-fault divorce state, meaning that neither party has to prove the other is at fault for the marriage failing. Rather, it is enough to simply show that the marriage is over.
Once you are ready to file, you must have lived in the state of North Carolina for at least six months and in the county where you are filing for at least 30 days.
To file for divorce in North Carolina, you will need to obtain a packet of information and forms from the family law office where you are filing your case. The packet will include information about legal separation as well if that is something that you are considering.
However, if one person wants to seek a divorce based on his or her spouse’s behavior, then that person has to prove certain elements of that case in order to get a divorce. If your goal is a quick and relatively simple divorce, then you may want to go the absolute divorce route. You can have an attorney help you with the process, to ensure the process is fairly simple.
If you prefer to have a judge decide things rather than compromise, then you will need to have your case heard in court.
Types of Divorce Laws in North Carolina
There are a few different types of divorces that can be had in North Carolina, but the most common type is an absolute divorce. An absolute divorce means you and your spouse have nothing to do with each other anymore. You may still live together or even visit each other, but there will not be any contact between you for good. This kind of divorce is very rare, so it’s best to get it if at all possible.
Absolute Divorce Laws In North Carolina
An absolute divorce is when the parties agree that no contact whatsoever will take place between them after separation. The only way this could happen would be if both parties agreed to such a thing during their marriage counseling sessions.
In order for an absolute divorce to occur, the following conditions must exist:
- The parties must be married If they aren’t married, then the courts will need to determine whether or not they were married under state laws. There are several ways that a marriage could be determined to be valid in North Carolina; however, if either party has been convicted of adultery or fornication within the past five years, then the marriage will not be recognized by the State of North Carolina. If you are unsure if your marriage is valid under North Carolina law, then it’s best to speak with a qualified divorce lawyer in your area.
- No children can be involved. If there are children involved, then an absolute divorce will not be granted. Instead, the State of North Carolina will attempt to reunite the couple with the hopes that they will take care of their child or children together.
- Both parties must have been separated for at least one year. If the couple has been separated for less than a year or if they have been separated for many years and still haven’t applied for an absolute divorce, then they might be able to get a divorce under the catch-all grounds of “lack of consensus ad idem,” which means the couple cannot come to an agreement.
- The parties must not live within the same household.
- The parties must not engage in sexual contact with one another.
- The parties must not engage in any type of financial support for one another. If they do, then a judge will most likely deny the absolute divorce because he or she will believe that the couple still has some sort of relationship.
- Both parties must have a witness verify their address for the last six months. The witness cannot be an immediate family member and must be over the age of 18.
- Both parties must confirm that their marriage has absolutely irreconcilable differences.
- Both parties must sign the appropriate documents in front of a notary.
No-Fault Divorce Laws in North Carolina
No-fault divorce is granted when one or both parties are in agreement that the marriage should end. No reasons need to be stated, and there is no need for the judge to decide which party is at fault.
A divorce will not be granted if you have lived with another person while married.
There are a few instances where a no-fault divorce cannot be granted:
- If you have been charged with a crime and sentenced to death, life imprisonment, or exile.
- If you have been charged with treason and sentenced to death or life imprisonment.
- If you have been sentenced to hard labor for over 5 years.
Fault Divorce Laws in North Carolina
A fault divorce is a divorce that is granted to a person whose marriage has irretrievably broken down, but only on the grounds that there was some wrongdoing by one of the parties, which makes it impossible or unreasonable to continue the marriage.
- The party who commits adultery during the marriage.
- The party who commits cruel and inhuman treatment to the other party during the marriage so as to make that party’s life miserable.
- The party who leaves the other party without justification and continuously for five years.
- The party whose spouse has deserted the other for at least two years.
- The party who has been sentenced to a term in prison for a period of five years or more.
- The party that has lost mental capacity to consent to the marriage, either then or previously
High-Asset Divorce Laws in North Carolina
A high-Asset Divorce in North Carolina is a divorce in which the two parties have considerable assets and/or property. In these cases, it is necessary to ensure that all property and any assets are properly divided between the two parties.
Uncontested Divorce Laws in North Carolina
An uncontested divorce means that both parties are able to come to a decision on how property will be divided and how custody and visitation will be arranged without having to go to court or get a judge involved.
If you meet these criteria, then an uncontested divorce is probably for you.
Contested Divorce Laws in North Carolina
In contested divorce, the two parties in the marriage are in fundamental disagreement over one or more issues. These issues usually involve disagreements over property, custody, and support.
In a contested divorce, both sides will bring their own witnesses to court to testify about their version of the events that led to the divorce. After hearing both sides, the judge will issue a decision based on his interpretation of the facts and what he believes to be fair and reasonable for all parties involved.
Bed & Board Divorce Laws in North Carolina
A divorce from bed and board differs from a separation in that the couple is still legally married though they may no longer be living together. The most common reason for a divorce from bed and board is that one party refuses to agree to a divorce petition.
This type of divorce doesn’t give either party rights or responsibilities toward the other, but it also doesn’t allow either party to remarry. It can sometimes be obtained with the mutual consent of both parties if one has violated a “fault” condition, or if both parties have agreed that they’ve lived separate and apart for at least a year.
If you and your spouse don’t agree on any issues throughout your divorce, then all of the same requirements for a regular divorce apply to a divorce from bed and board.
You must register your divorce from bed and board with the court within 60 days of the ruling.
After this, you can apply for a new marriage license if desired.
North Carolina Divorce Laws Procedure
North Carolina divorce court handles all divorce cases. This is the lowest level of court and deals primarily with the dissolution of marriage. Divorce proceedings are conducted by a Judge. The purpose of this court is to end a marriage.
If you want to get a divorce from your spouse, you can do so by going to the Clerk of Court’s office located in the district where your spouse currently resides. If you or your spouse no longer resides in North Carolina, you can go to the Clerk of Court’s office located in the county in which either of you last resided together.
Once at the Clerk of Court’s office, you will be required to pay a fee for filing and license fees. Once this is completed, the Clerk of Court will issue you a divorce complaint form to complete and submit back to the Clerk of Court’s office. Once the Clerk of Court’s office receives your complaint, they will forward it to the judge that presides over your case.
The judge will then set a date for you to come into court and state the issues you have with your spouse that is preventing you from continuing your marriage. At the hearing, you will have an opportunity to state your issues and your spouse will have an opportunity to state his issues. You will also have an opportunity to come into court again with any witnesses to testify for or against issues that you or your spouse have stated.
The judge will then make a ruling on your issues. If the judge rules in your favor on any of the issues, you will be granted a divorce. If both parties are in agreement with the divorce, then the judge will grant a no-fault divorce. If one of the parties does not agree that the marriage should end, then the judge will grant a fault divorce.
In order to proceed with fault divorce, you or your spouse must state adequate grounds for which to grant a divorce.
401(k) and IRA and North Carolina Divorce Laws
The following is general information about the division of 401(k) and IRA accounts in a divorce. It isn’t meant to be legal advice for your particular situation because there are specific rules that apply to this subject. If you have questions about a particular situation, please feel free to call and discuss it.
In North Carolina, a 401(k) plan is treated as property and is divided between the parties. An IRA, such as an individual retirement account, Roth IRA, or traditional IRA is also generally treated as property and divided between the parties. Under both circumstances, the account is deemed to be a marital asset and must be divided according to the law.
In North Carolina, if you have a 401(k), you and your spouse are required to take a Qualifying Dividend Process before the division of the plan can be made. This process involves contacting the 401(k) plan administrator and having them send a form to you and your spouse. The form must be filled out and returned to the plan sponsor.
This form is then sent to the IRS and it notifies you of the tax consequences of taking the distribution in the taxable year in which you take it. I strongly suggest that you consult with your CPA or other tax advisor before deciding whether or not to take the distribution in a particular year.
Under most circumstances, a Qualifying Dividend Process must be taken within one year of the divorce being finalized. If the Qualifying Dividend Process is not taken within one year, then the remaining balance of the account will be divided according to community property law.
FAQs Related to North Carolina Divorce Laws
Check out answers to frequently asked questions about North Carolina divorce laws and the divorce process in North Carolina.
How is property divided during divorce in North Carolina?
North Carolina Courts use a formula called “Equitable Distribution” when deciding how to divide property. Equitable is defined to be equal, just, fair, in accordance with justice, consistent with reasonableness, consistent with equity, and not arbitrary or capricious .
Can you remarry after the divorce is granted?
After a divorce is granted, the judge will give you a paper stating that your marriage has been dissolved and the custody of any minor children. This is called a “Decree.” You can only remarry after the Decree is officially filed in court and you have officially been released from your first marriage.
A marriage that has been annulled is considered never to have existed. It is treated as if the parties were never married. The same rules for children apply for an annulment as for a divorce.
How is alimony determined during divorce in North Carolina?
The general rule is that a spouse is dependent when he or she makes less money than the other spouse. The North Carolina alimony statues contain sixteen factors which when applied to your unique situation will determine whether you are entitled to receive alimony and if so what amount.
If you are concerned about receiving alimony it is very important to have an attorney that is experienced with North Carolina family law handle your case.
In North Carolina fault may be used as a consideration in divorce, however it is not a factor to determine alimony. Alimony is determined by a number of factors and fault will not play into the final determination.
The one exception to this rule is if domestic violence occurred during the marriage, then alimony can be affected depending on the circumstance.
What is an Annulment?
Annulment is a way of saying that a marriage was never valid in the first place. This may happen if one party discovered that there was a significant issue, like an undiagnosed STD when giving consent, or mental illness.
Annulment may also be available if one party was deceived into the marriage, perhaps thinking the other was rich.
How does Name Change work during Divorce in North Carolina?
Under North Carolina law, either party to a divorce may request a change to his or her last name. This is commonly done in the event of an outdated surname. For example, if your ex-husband were to resume his maiden name of Smith, you could request a change to your married last name of Brown.
Of course, this assumes that you will still have access to your birth certificate and Social Security card after filing for divorce. It is also important to remember that this is not related to child custody or parenting issues. Divorcing parents do not have any rights or responsibilities when it comes to their children’s last names.
Sometimes, it is wise to wait until your divorce is finalized before undergoing a name change. Otherwise, you may find yourself filling out paperwork with one last name and introducing yourself with another.
How much does divorce cost in North Carolina?
The filling fee for divorce in North Carolina is $225 and on average the overall divorce cost can be between $8,000 to $15,000 because the issues in divorce cases are very complex and require a significant amount of research, document gathering, and time from the attorneys.
The lower end of this range would apply to a straightforward property division with no children and minimal asset division. The upper end would apply to a high-net-worth case with significant business interests, complex property division, and minor children.
How to file for an Absolute divorce in North Carolina
To begin the uncontested divorce process, please follow the following steps:
1. Fill Divorce Forms
You must complete the following forms to file for divorce in NC:
- Complaint for absolute divorce (Form DV-100).
- Domestic Civil Action Cover Sheet (Form AOC-CV-750).
- Civil Summons (Form AOC-CV-100).
- Servicemembers Civil Relief Act Affidavit (Form AOC-G-250).
These forms are available at the court clerk’s office or online. (N.C. Gen. Stat. §§ 50-8.) You will also have to pay the court fees, which include a $400 filing fee and an $80 charge for the civil cover sheet. (N.C. Gen. Stat. § 50-9.) You can ask the judge to waive the filing fee if you are unable to pay it. (N.C. Gen. Stat. § 1-19.17.)
2. File Court Paper’s with the Court Clerk
Once you have all the paperwork and fees together, you must file your documents with the court clerk. (N.C. Gen. Stat. § 1A-1.)
3. Serve the Defendant
Before you file, make sure that you have properly served your spouse—that is, delivered a copy of the complaint to him or her. You may either do this yourself or pay someone else to do it.
4. Set hearing date after 30 days
The defendant is given 30 days after the being served the divorce complaint to submit an answer and prepare a motion. The defendant can file an answer with the court clerk and serve a copy to the plaintiff.
After 30 days you can contact the clerk’s office and get a court hearing date and also file out a Notice of Hearing form to send the Defendant the date of your divorce hearing
5. Prepare Judgement for the Judge
After reviewing your forms and paperwork, the judge may ask you to present your case. Upon which the judge could sign your judgement for divorce.
How much time does it take to finalize divorce in North Carolina?
The average time it takes to finalize divorce in North Carolina is around four months. If the case is asteeped in conflict and the judge feels he needs to see more evidence before he reaches a decision, then it could take longer than 6 months.
Do you need a lawyer to file for divorce in NC?
It is possible to file for divorce without a lawyer, but you must understand all of the forms and know what you are signing. You may also be at a disadvantage during court if your spouse has a lawyer.
You may hire an attorney to represent you or you can ask for court-appointed counsel if you cannot afford one. The process of getting a divorce with children involves additional steps that address custody, visitation, and child support.
How much does a divorce lawyer cost in NC?
On average, a uncontested divorce with a lawyer will cost between $1500 and $3000 in North Carolina.
A divorce with minor children costs more due to the added steps involved in determining custody, visitation, and child support.
The cost of your divorce will also greatly depend on your geographic location, the complexity of your case, and the amount of assets you’re fighting over.
If you’re looking for a free online divorce, there are some sites that advertise “free divorces”.
How can you get legally separated in North Carolina?
If you and your spouse live apart without an intention to reconcile, and you’ve both expressed a desire that the marriage be over, then you’re considered separated.
This is different from a divorce in that only divorce has legal ramifications. For example, a spouse who is not legally divorced still has the legal rights of a husband or wife for insurance coverage and other benefits.
You must register your separation with the court if you want a legally recognized separation.
Can I get a divorce if my spouse does not agree to it?
Neither your spouse nor both of you have to agree for a divorce to be granted.
If you’re the one filing for divorce, then you will be the “petitioner” and will be referred to as such in court.
In order for your divorce to proceed without your spouses’ cooperation, you will need to file a motion of dismissal as there is no way to force someone to sign divorce papers. You have ensure that your wife is served the divorce papers when you file for divorce in North Carolina.
How to serve the divorce papers to your spouse?
You can have the local sheriff serve the divorce papers to the defendant for a fee of $30.00 or you can mail out the divorce papers using a certified mail for a fee of $7.00 to serve the defendant. These fees are subject to change.
Get Help from an Experienced North Carolina Divorce Laws Attorney
If you are considering filing for divorce in North Carolina, it is a good idea to consult with an experienced family law attorney near you. Culbertson & Associates, experienced
Call our office to set up an appointment to discuss the specifics of your case.