Going through a divorce can be a difficult process full of stress, fear, and uncertainty. If you have children or significant marital assets, things can get complicated in a hurry. Without the help of a skilled and experienced divorce attorney on your side, you could be in trouble.
In this blog article, we’ll clear up common sources of confusion and give you some practical advice about divorce in North Carolina. Keep reading to learn six essential facts about the North Carolina divorce process.
1. Anyone Can File for Divorce — if They Meet the Requirements
In North Carolina, any legally married spouse can file for divorce, regardless of which state the couple was married in. However, there are two requirements that must be met:
- One spouse must be a legal resident of North Carolina who has lived in the state for at least six months before filing.
- The two spouses must have lived separate and apart for at least one continuous year, and at least one spouse must have intended to leave the marriage throughout that time.
The separation requirement is very important. You don’t have to file any paperwork to begin the separation, but either you or your spouse must move out of the marital residence and intend to leave the marriage.
Keep in mind that the separation requirement is for one continuous (uninterrupted) year. If you and your ex move back in together and decide you want to recommit to the marriage, only to realize a month later the decision was a huge mistake, you have to start the one-year separation period all over again. (However, physical intimacy doesn’t necessarily affect the separation; if you and your spouse decide to “hook up” with no strings attached, and one or both of you still intends to leave the marriage, it won’t affect the one-year separation period.)
For a filing fee of $225, the filing spouse can file a Complaint for Absolute Divorce with the Clerk of Court. For more information about how to file, read our previous blog article: How to Obtain an Absolute Divorce in Mecklenburg County.
2. North Carolina Is a No-Fault Divorce State
In North Carolina, the spouse filing for a divorce does not need to prove the other spouse was at fault to get an absolute divorce (a complete termination of a marriage). So, you don’t need any specific grounds for divorce in our state — you just need to meet the requirements we described in the previous section.
However, even though North Carolina’s divorce laws don’t require you to prove fault, you can still file for a fault-based divorce based on marital misconduct or incurable insanity. (We won’t go into divorce based on incurable insanity here, as it’s fairly rare.)
A divorce based on marital misconduct is also called a divorce from bed and board. You may be able to get this type of divorce if your spouse engaged in any of the following six behaviors:
- They abandoned your family.
- They kicked you out of the marital home for no good reason.
- They inflicted cruel treatment on you (such as domestic violence) that subjected you to harm or endangered your life.
- They treated you so badly that your life became unbearable.
- They abused alcohol or drugs to the point that your life became unbearable.
- They committed adultery.
Divorce from bed and board often creates confusion because the name is misleading: if you petition a court for a divorce from bed and board and succeed, you’ll still be married to your spouse. You won’t be able to remarry until you get an absolute divorce. So, why would anyone want to get this confusingly named type of “divorce” that doesn’t actually end the marriage?
The reason is that a divorce from bed and board can still serve a couple of important purposes. First, you can file for this type of divorce without being separated for one year; if you succeed, the divorce will create a legal separation and may provide grounds for removing your spouse from your home. Second, proving that your spouse is at fault for the breakdown of your marriage can put you in a better position as you handle divorce-related legal issues like child custody and spousal support. Then, after you have been separated for one year, you can come back to court and get a judgment of absolute divorce, which will end the marriage for good and allow you to remarry.
3. North Carolina Courts Will Split Your Marital Assets 50/50 — Unless You Can Give Them a Good Reason to Do Otherwise
During a divorce, North Carolina courts try to divide marital property in a way that’s fair and equitable to both parties. Marital property includes any income, assets, and debts you and your spouse accumulated during the marriage.
Marital property usually includes:
- Bank account balances and cash on hand
- Investment accounts
- Pension and retirement accounts
- Real estate
- Personal property, such as:
- Cars, boats, and other vehicles
- Jewelry, antiques, artwork, and collectible items
- Furniture and appliances
- Debt, such as:
- Auto loans
- Credit card debt
Not everything you own is necessarily marital property. The court will consider any assets you owned before the marriage and any property you received during the marriage as a gift or inheritance to be separate property. These assets won’t be part of the property division process unless you commingled (mixed) them with marital property.
How does commingling happen? An easy example is if you took money that you brought into the marriage and put it into your joint checking account that you shared with your spouse. However, other examples of commingling aren’t so obvious. For example, if you owned the marital home before getting married but used marital funds to pay the mortgage or renovate the house, your home will have a marital property component.
Once you separate from your spouse, you no longer accumulate marital property together. However, sometimes spouses earn property during the marriage but don’t receive it until after the separation. And often, assets change in value between the date of separation and when the court gets around to property division. In both cases, these assets become divisible property, and the court will deal with them during the property division process.
Once all the property is accounted for, the court has to divvy it up. North Carolina follows a rule for property division called equitable distribution, which means at the beginning of the property division process, the court will assume both spouses should receive an even split of the marital assets. Then, the judge will listen to arguments from either spouse or both spouses to change this 50/50 split.
Factors the judge will consider may include:
- Each spouse’s income, debts, and property
- How long the marriage lasted
- Each spouse’s age
- Ways in which a spouse directly or indirectly contributed to the other’s educational and professional opportunities
- A custodial parent’s need to occupy or own the marital home or other household items
- Both spouses’ physical and mental health
- Tax consequences related to the property division
Also, North Carolina law says judges can consider any other factors they decide are “just and proper” during the property division process. So, judges have a lot of individual leeway when deciding who gets what in a divorce.
4. Prepare for a Fight Over Alimony, Child Custody, and Child Support
Besides property division, three other major legal issues can lead to battles in a divorce case: alimony (also called spousal support or postseparation support), child support, and child custody.
- Alimony is financial support paid by one spouse (the supporting spouse) to the other spouse (the dependent spouse). This support is supposed to help the dependent spouse stay financially secure as they transition out of the marriage.
- Child support is an ongoing, court-ordered payment made by one parent to the other parent, who has primary custody of the child. The parent who receives child support is supposed to use the money to pay for the child’s reasonable needs and expenses.
- The child custody process determines who gets legal custody of the children and sets up an arrangement for physical custody.
- If the child is with you and not the other parent, then you have physical custody. When you have physical custody, you can make day-to-day decisions about the child’s care — what they should eat, what they should wear, and so on.
- Legal custody gives the right and responsibility to make important long-term decisions on the child’s behalf. These decisions can cover matters like education, healthcare, and religious practice.
Each of these legal issues is complex in its own right and will probably involve many filings and trips to court, unless you and your spouse can work together and settle the issue with either a separation agreement or consent order. If you want more in-depth information about one or all of these issues in North Carolina, refer to the following blog articles from our website.
5. Don’t Plan on Getting an Annulment
An annulment is a legal judgment that voids a marriage. A divorce ends a marriage, but an annulment is more like turning back time: it’s as if the marriage never even happened.
Some people believe they can get an annulment because they weren’t married long or got married hastily. However, this isn’t true. You can only get an annulment if your marriage wasn’t legally valid in the first place, and these circumstances are very rare.
There are only six possible factors that could make your marriage legally invalid in North Carolina. Those factors are:
- Either spouse was already married at the time of the marriage
- You and your spouse are closely related (closer than first cousins)
- Either spouse was younger than 16 on the date of the marriage, and you didn’t have a special court order that allowed you to get married at a younger age
- Either spouse was forced to marry against their will or was incapable of understanding what they were doing at the time of the marriage
- The marriage was based on one spouse lying about being pregnant, and the couple separated within 45 days of the marriage and stayed separated for at least one year and produced no children within 10 months of the date of separation
- Either spouse was physically impotent (not capable of engaging in sexual intercourse) at the time of the marriage; the impotence must be permanent, incurable, and diagnosed by a medical professional
If your marriage doesn’t meet one of these six grounds for an annulment, then you can forget about getting one — it’s not going to happen. If you believe your marriage wasn’t legally valid, talk to an experienced family law attorney right away; getting your marriage annulled can be a complex process, even if you have grounds.
6. It’s Critical to Find the Right Divorce Lawyer
A divorce is one of the most important events in your life and will have major implications on your future. So, it’s essential to choose a divorce attorney who not only has experience and understanding of the law but who also communicates well and makes you feel comfortable and confident.
Be sure to do plenty of research when choosing a divorce attorney. Feel free to meet with more than one attorney and ask every attorney you meet plenty of questions. If the attorney has a problem with you asking questions or considering other options, that’s a red flag, and you should keep searching.
Make sure you understand your attorney’s experience, previous results, and fee structure. A good divorce attorney should have plenty of family law experience, a fair and considerate pricing structure, and a proven track record of achieving favorable results for their clients. You don’t have to take the attorney’s word for it, either; ask about client testimonials, check out online reviews, and ask around among friends and colleagues.
Finally, listen to your gut. If you get a bad vibe from an attorney or don’t like the way they conduct themselves, look elsewhere, even if the attorney’s credentials and experience seem strong. Your divorce lawyer doesn’t need to be your pal, but you will need to trust them and spend a fair amount of time with them. A divorce is stressful enough, so the last thing you need is a lawyer who talks down to you, makes you feel anxious or uncomfortable, or won’t give straight answers to your questions.
Considering a Divorce in Charlotte, North Carolina? Get in Touch With Myers Law Firm
If you’re considering filing for divorce or your spouse has filed divorce papers in Mecklenburg County, the experienced, compassionate attorneys at Myers Law Firm are here to help. We’re ready to answer your questions, listen to your story, and fight to protect your rights. To schedule your initial consultation, please call our Charlotte office toll-free at 1-888-376-ATTY (2889) or use our online contact form.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.