North Carolina Divorce Questions and Answers
You need North Carolina divorce information and you’ve come to right place. We’re divorce lawyers only practicing in North Carolina and we exclusively handle family law matters. Rushing into this process too quickly will cost you. You need to time your divorce properly. You need to be certain your divorce achieves your goals and doesn’t jeopardize your finances.
How soon can I get a North Carolina Divorce?
Slow down. A North Carolina divorce won’t happen until you’ve been separated for one year. That, doesn’t, however, mean you can’t get most of what you want – now. The divorce, in North Carolina, is a small part of a much larger process. That’s not the case in many states. North Carolina is different. North Carolina generally requires that you deal with financial and child issues before divorce.
A North Carolina divorce will be granted after you’ve been apart for one year and properly preserved or resolved your financial issues. It is, however, possible for you to do your own divorce and lose your rights. Be careful, move cautiously and be sure your divorce protects your North Carolina rights.
When should I start the process?
Some websites have big “Start My Divorce Now” buttons that encourage you to get the process rolling right away. Should you do that? Getting a divorce in North Carolina is substantially different than it is in many other states and doing so before you have your ducks in a row is the worst possible decision. You’ll lose rights. You’ll risk your future. The green button is not a solution to your problems. Take your time and get this right. For most of us, our divorce is the biggest financial transaction of our lives. Clicking those big, tempting buttons is a mistake.
What information do I need to know?
The first thing you need is a solid understanding of how North Carolina divorce laws work. This site guides you through the basic substance of separation and marital dissolution law in North Carolina. With this information, you can better grasp the overall outline of the separation and NC divorce process.You will then be able to make more informed decisions about how you yourself should once you or your spouse decide that you should no longer live together. Without this “big picture,” you could stumble blindly through the process, never quite able to recognize whether your expectations for the ultimate bargain are achievable or at what price.
North Carolina Divorce is not, however, intended as a complete reference source that substitutes for the analysis of an experienced North Carolina practitioner of family law.
Is my circumstance normal?
Each divorce case can involve one, some, or all of the issues discussed here. At the same time, factual variations in various couples’ lives make the principles reviewed here of only general applicability. Individual North Carolina divorce cases can, and do, look as different as the people who are divorcing. Given the countless differences among marriages, this website cannot replace the advice of a skilled attorney concerning your own family.Such advice is most valuable at the stage when you are planning a separation, so that you can avoid action or inaction that will be more difficult to undo or correct later on. Legal advice remains useful, of course, throughout the process of resolving the various issues discussed in this website. But it should not be legal advice that you seek without already having gained a solid grounding in the law of separation and divorce.
Where does this site fit in?
The legal information on this site is most valuable at the stage when you are planning a separation, so that you can avoid action or inaction that will be more difficult to undo or correct later on. Legal advice remains useful, of course, throughout the process of resolving the various issues discussed in this website. But it should not be legal advice that you seek without already having gained a solid grounding in the law of separation and divorce. Just follow the links below to find out more, or visit our NC Divorce Center to see all of the resources available.
What are the grounds for divorce in North Carolina?
There are only two grounds for divorce in North Carolina. The first is a one-year separation. You must assert, under oath, that you and your spouse have been living separate and apart for one year.
It is not enough to assert that you have lived in separate bedrooms, or that you have not engaged in acts of sexual intercourse. You must live in separate residences during that year. You do not need to file any papers to document the beginning of your separation; your assertion is sufficient to prove that the year has elapsed.
The second ground for divorce in North Carolina is incurable insanity. However, this is rarely used.
What is Absolute Divorce?
The Absolute Divorce in North Carolina is the easiest part, from a legal perspective, of the end of a marriage. The divorce itself does not involve the issues of money or children – it’s a formality. Divorce is, in North Carolina, merely a status change which does not directly impact other issues. Our firm sponsors monthly North Carolina Divorce Legal Seminars which address the multitude of issues found in most divorce disputes.
How do I get divorced?
There are two ways to get divorced. The first and most common way to obtain a North Carolina divorce is to prove a one year separation. The other way to obtain a North Carolina divorce is to prove incurable insanity.
Most North Carolina divorces are obtained after proving a one year separation. The typical North Carolina divorce is granted within about 60 days of the date of filing.
Do I have to go to court?
Usually, the answer is no, but when you can’t reach an agreement with your spouse on certain aspects of property division, child custody, alimony, etc. you may be left with no other alternatives. The procedure for drafting, filing and serving most litigation documents is too complex and too fraught with legal peril to be attempted by most laypersons.
What are my no-court options?
Methods of resolving serious divorce disagreements that don’t rely on litigation and going to court are often grouped into a category called “alternative dispute resolution”. The three primary methods for resolving divorce disputes are mediation, arbitration, and collaborative divorce.
Mediation allows you and your spouse to reach a fair settlement with the help of a third, neutral party called a mediator, who can be a lawyer, mental health professional, clergy member, or other professionals trained in alternative dispute resolution techniques. Arbitration relies on the use of a private judge to decide the issue, rather than subjecting yourself to the inefficiency and public nature of the court process. In NC, collaborative divorce is a process which requires special training for both your lawyer and your spouse’s lawyer and relies on a contract stating that the parties will attempt to reach an agreement without court, and that different attorneys will be required should court become necessary, incentivizing all parties to keep the divorce out of the legal system.
Most divorcing couples in North Carolina are able to separate without going to court, and we’ve dedicated an entire section of this site to covering these alternative dispute resolution methods.
However, that doesn’t mean you shouldn’t have an idea of how the process works. Even if you never set foot inside a courtroom, knowing how judges make decisions will give you a better idea of how to approach negotiations in your own situation. We’ve created an extensive summary of how court procedures work in North Carolina:
What is divorce going to cost me? Can I afford it?
The exact attorney fee will vary with the services you require. Many law firms charge their clients a certain fee per hour. It is difficult for these attorneys to accurately predict the cost or your fee because they do not know precisely how much time it will take to complete your case.
Some firms, ours included, charge certain fees for certain services. We provide a fee calculator on this website that is based on fixed fees to help estimate the potential cost of your attorney fees. Also, during a consultation, our attorneys can provide you with a detailed explanation of the exact legal fees for your case.
How do I find the right divorce lawyer?
There’s no other way to say it: Using a lawyer can make a genuine difference in how you feel during the process of separation and divorce. A lawyer who truly listens to you and responds appropriately can greatly reduce your fears, uncertainty and confusion. A lawyer who doesn’t listen to you, or who botches your case, will make you feel a whole lot worse. Maybe that’s why lawyers have gotten such a bad rap. But not all lawyers are going to make you feel worse. Most lawyers are going to make you feel better, if only because you can get confirmation of your predictions about why things have happened the way they have and where things are going.
We’ve written a guide on How To Choose a North Carolina Divorce Attorney outlining all the characteristics the professional you hire to help you should have. If you still don’t know where to start, our North Carolina Divorce Lawyer Locator is a comprehensive list of verified lawyers we personally recommend across every county in North Carolina.
Do I really need to hire an attorney?
Although we recommend talking to an attorney before taking any action and strongly advise using a lawyer for your divorce, any or all of the process can be handled without a North Carolina divorce lawyer. Sometimes, financial necessity means handling some of the pieces on your own, and our guide to reducing the cost of divorce outlines ways you can spend less, whether you hire an attorney or not. We’ve also built a complete DIY guide to file for absolute divorce, including all of the forms you need and instructions on how to complete them and where to file.
How is the property divided?
In distributing marital property, the court conducts a three-step analysis. Only the parties’ marital property, which includes both assets and debts, is to be distributed. An order distributing the parties’ property must contain written findings of fact supporting the court’s determination that the marital property has been equitably divided.
In North Carolina the process of dividing the property and debts of a marriage is called Equitable Distribution. First, the court is required to identify and classify all the parties’ property, based upon the evidence presented regarding the nature of the asset or debt. Identification is the assessment of whether husband, wife, or the marital entity has any claim of ownership to any type or item of property. Identification is the preliminary step in which the court determines the full extent of the parties’ interests in all property, and this step precedes the classification of such specifically identified property.
In most ED actions, the statutes do not permit one party to recover attorney’s fees from the other party. The one small exception to this rule allows the discretionary award of reasonable attorney’s fees and costs to the owner of separate property who sues the other spouse to regain possession of separate property removed from the marital home or possession of its owner by the other spouse.
Who gets alimony?
Alimony in North Carolina is payment for the support and maintenance of a spouse, either by lump sum or on a continuing basis. Alimony is paid by the “supporting spouse” to the “dependent spouse;” the general rule is that a spouse is dependent when he or she makes less money than the other spouse.
Alimony is paid by the “supporting spouse” to the “dependent spouse.” The general rule is that a spouse is dependent when he or she makes less money than the other spouse. The North Carolina alimony statutes contain sixteen factors which guide the court in making an alimony determination.
Does an affair affect alimony?
Both postseparation support and alimony are available in a North Carolina Divorce. Support is payable to financially dependent spouses without any requirement that the supporting spouse be proven to have been at fault. Be aware, however, that a dependent spouse can lose support after having an affair. In cases where the supporting spouse can prove that the dependent spouse engaged in uncondoned illicit sexual behavior, and the supporting spouse committed no similar fault, the dependent spouse loses his or her technical entitlement to alimony (but not the possible right to postseparation support).
Who gets custody of the children?
Child custody will be determined in one of two ways, either by agreement between you and your spouse or by a court order. If there is no court order or agreement in place, either you or your spouse could try to change the existing custodial arrangement at any time simply by moving a child’s residence. Many couples do not understand that without some written agreement or court order, a child is vulnerable to unpredictable disruption in living arrangements and discontinuity.
Parents often wonder when, if and how their children get to decide which parent they will live with. When a parent fails to comply with the order of the court the contempt statutes can provide a solution to the problem. Because no two situations are alike, getting advice about your specific circumstance is critical. Our bi-monthly free webinars offer a chance to speak with a North Carolina divorce lawyer about the details of your case.
Until you both settle, or until a court issues a ruling on custody, remember that the general rule applies: each parent has co-equal rights to the physical possession of a child of the marriage. Unless there is some written document establishing custodial and visitation rights, the custodial arrangements are subject to being changed at the whim or caprice of either parent.
Click here to visit our extensive collection of articles, FAQs, and videos about child custody.
If I have custody, do I get child support?
The court will order that child support be paid to the custodial parent by the non-custodial parent. In North Carolina child support payments are based on guidelines. These guidelines are adhered to by the court in the typical case; however, the court may deviate from the guidelines. The non-custodial parent is ordered by the court to pay a percentage of that parent’s gross monthly income.
Joint vs. Sole Custody
Even where there has been an amicable settlement on the issue of a child’s principal residence, parents can get hung up on terminology. One parent insists she wants “sole custody” and the other parent fights to include the phrase “joint custody” in the written agreement.
This fight over language is often less important legally than the spouses think. These terms typically refer to a parent’s rights to make decisions regarding the child, with “sole custody” indicating that the parent with possession has most or all of the decision-making authority and with “joint custody” tending to indicate that each parent will have some decision-making input. In actuality, however, the terms “joint” and “sole” mean whatever the written custody document says they mean.
You need to keep this in mind as you draft your agreement; you also need to keep this in mind when you start to find yourself in a fight over phraseology. The terms “sole custody” and “joint custody” have no special meaning in North Carolina except the meaning you give them in an agreement or the meaning a judge gives these terms in a court order. In other words, it all depends on what else the document says, if anything, about decision-making.
How is “visitation” defined in North Carolina?
The non-custodial, secondary parent’s time with the child is commonly referred to as visitation. Visitation is viewed in North Carolina as a lesser version of custody. Hence, the same principles apply to custody as to visitation in regard to the best interests of the child, parental rights, the child’s wishes, and the discretion of the trial judge. In most residential arrangements for children of divorce, one parent has more custodial time with the children and the other parent has less custodial time, also known as “visitation”. Visitation refers, in other words, to the custodial time assigned to the parent with whom a child does not primarily reside.
In litigated custody cases in North Carolina, the secondary parent is most frequently awarded alternate weekends, sometimes one overnight during the week or another evening for supper, half of all major holidays, and special days such as Mother’s or Father’s Day and birthdays. Over the past few decades, there has been a judicial trend toward increasing the number and length of visitation periods for the secondary parent, although different judges in North Carolina have different philosophies regarding this issue. A few judges believe, for instance, that very young children should remain in one setting most of the time. These judges would, accordingly, award less visitation to the non-custodial parent, at least until the child is older.
How much child support will I owe?
Child support is calculated based upon each parent’s income which may include IRAs and stock options. When child support is not paid as ordered the court has the authority to hold a child support obligor in contempt for nonpayment. The contempt statutes provide insight into what is considered contempt in North Carolina.
Which child support worksheet do I use?
The Guidelines set child support in all three potential custody arrangements — sole, joint and split. “Sole” custody calculations occur under Worksheet A, which applies when the non-custodial parent has the child for fewer than 123 overnights during the year. To fall under the Guidelines definition of “joint” custody and to be eligible for a support calculation under Worksheet B, the secondary parent must have the child overnighting with that parent at least 123 nights each year.
In general, the calculation of the secondary parent’s child support obligation under Worksheet B will yield a lower child support amount than use of Worksheet A. “Split” custody, which uses Worksheet C, refers to families with more than one child, where at least one child lives with one parent full-time and the other child or children live with the other parent.
We’ve taken the headache out of determining which worksheet to use with our NC Child Support Calculator. Just answer a few questions about your situation, and it will automatically calculate the amount you owe or are owed using the correct worksheet.
Domestic violence. Behind closed doors it secretly bruises the lives of nearly four million wives and children, relatives and friends each year. We’ve all seen the statistics: an estimated 44 million women in the United States are battered each year by their husbands or partners. Studies show that violence occurs at least once in two-thirds of all marriages. Approximately 95% of the victims of domestic violence are women. And roughly 40% of all physically abused children have also witnessed interspousal physical violence. Finally, many children who are abused, or who witness abuse of their mothers, grow up to become abusive themselves or become victims of domestic violence again. And the circle continues.
Domestic Violence is, in North Carolina, the subject of special laws that provide quick and effective relief in a North Carolina Divorce. Visit the domestic violence center to learn more about the resources the state of North Carolina provides.
Does divorce trigger tax consequences?
The dividing of most assets will not trigger a tax event; the IRS has created a rule allowing for any spouse-to-spouse transfer that takes place incident to divorce to be tax-free. Thus, a lump sum payout from a checking or savings account can be transferred with no tax implications. Vehicles, jewelry, and other personal property can also be transferred tax-free.
Some marital assets, however, automatically trigger tax consequences that can be costly if not handled property. For instance, retirement accounts are specifically designed so that early withdrawals result in a major tax hit. So regardless of the IRS rule about tax-free transfers incident to divorce, if a divorcing spouse withdraws funds from a retirement account to give to his former spouse, he will inevitably face tax consequences. Learn more about the details of tax implications in our dedicated tax center.
Will my retirement accounts be split?
Retirement plans are subject to division through equitable distribution, just as any other marital asset would be. All assets and debts will be divided; bank accounts, time-shares, retirement accounts and even frequent flier miles are subject to distribution.
The first step in dividing a retirement account is to determine how much of the plan is marital property, and thus subject to distribution. Depending on the circumstances, all or a portion of any given retirement plan could be considered separate property. For instance, if the retirement was earned prior to the marriage, it would be considered separate property and therefore not subject to distribution.
How are account values determined?
After it has been determined that some portion of the plan is marital, the plan will have to be valued. This is easier for some accounts than others. An IRA is easy to value; simply look at the balance on the date of separation. Other accounts, such as non-vested pensions, or a defined benefit plan prove more difficult to value. In more complicated situations valuation may require hiring an expert, like a CPA, to analyze the numbers and come up with a value.
How are retirement accounts divided?
Distribution is the final step – and can also prove tricky when it comes to retirement accounts. Depending on the type of plan you are dividing, there will be certain rules you must follow to avoid taking a tax hit when you divide the account. IRA’s are fairly straightforward, you’ll need to make sure the transaction is structured as a transfer or rollover so that you can avoid the early withdrawal tax. Other plans, may require the use of a Qualified Domestic Relations Order or other similar vehicle to divide the plan without experiencing a tax penalty.
Mediation and Arbitration
Mediation and Arbitration are both types of Alternative Dispute Resolution. Both of these occur outside the courtroom, and provide alternative options to reach an agreement. During mediation both parties meet with an unbiased third party. This is an attempt to resolve the disagreement by “talking it out”. During Arbitration the third party acts as a judge. He hears both sides of the story, and then decides what should be done.