|The following information was published by the North Carolina Bar Association as a public service
Separation and Divorce
Sometimes marriages do not work out as planned.
When that happens, couples separate and later
divorce. The purpose of this pamphlet is to explain
the law of separation and divorce by answering frequently
asked questions on those matters
Do I File for Separation?
No. Separation happens once husband and wife
begin living separate and apart and at least one of
them has the intent to remain separate and apart.
Do I Need an Agreement or Court
Order to be Legally Separated?
No. You are legally separated once you begin living
separate and apart and at least one spouse intends
to remain that way.
Is it OK if We Continue Living in the
No. Living separate and apart means you must be
living in separate residences.
What are the Grounds for Divorce?
There are only two grounds for divorce: 1) Separation for
One Year; or 2) Incurable Insanity of One Spouse and
Separation for Three Years. The vast majority of marriages
are dissolved based on the ground of separation
for one year. In order to get divorced, you must
have been separated for one year and at least one
spouse must have had the intent to remain separate
and apart. In addition, one of you must have been a
resident of North Carolina for at least six months.
Fault is not necessary to obtain a divorce.
What Do I Need to Do to Get
You have to file a Complaint (lawsuit) asking for a
divorce. You cannot file a divorce complaint until
after you and your spouse have been separated for
one year. You have to serve your spouse with the
Complaint. Service is usually accomplished by certified
mail or Sheriff. Then you will need a hearing in
front of a judge. The judge has to enter a Judgment declaring
you divorced. You are not divorced until
the judge signs a Judgment and the clerk file stamps
Does it Matter Who Files for the
No. The person who files for the divorce is responsible
for filing the appropriate papers, paying the filing
fee and getting the hearing scheduled. However,
there is no advantage to filing first.
How Long Does the Divorce Process
The length of the process varies based on how
long it takes to get service of your spouse and how
soon the clerk schedules the divorce hearing.
Generally, it should take approximately 60 days after
the Complaint is filed.
What is the Effect of a Divorce?
There are many important effects of a divorce.
First, the entry of a divorce cuts off your right to
alimony and property division. If those claims have
not been resolved in a valid and binding Agreement
or properly filed with the court prior to the entry of
the divorce judgment, they are lost forever. The loss
of those claims can be devastating. If you have a
claim for alimony or if you or your spouse acquired
property during the marriage (house, cars, bank
accounts, retirement), you need to consult an attorney
to protect those claims. Second, the entry of a divorce
changes your tax filing status. Third, the entry of a
divorce enables you to remarry. Fourth, the entry of a
divorce cuts off your rights to inherit from your
spouse. Fifth, it can alter the way your house is
owned if you own a house with your spouse.
How Do I Change My Name Back?
You may include a request to change your name
in your divorce complaint. The name change can be
included in the divorce judgment. You cannot
change your name to any name in this process. You
may resume your maiden name. You may also
resume a former married name under certain circumstances.
What About Custody, Child Support,
Alimony, and Property Division?
These issues are complicated and beyond the
scope of this pamphlet. You may resolve these
issues by agreement with your spouse, in which
case you would execute a Separation Agreement. In
order to be valid and binding, a Separation
Agreement needs to follow certain formalities. You
should consult an attorney for assistance in negotiating
and drafting the Agreement. If you and your
spouse are not able to agree, you can try mediation
or arbitration as alternatives to court. If those
options do not work for you, you will have to file a
Complaint (lawsuit) seeking relief in court.
Regardless of which approach you choose, you
should consult an attorney first.
What is Mediation?
Mediation is when a neutral third party helps
facilitate an agreement between the parties. The
mediator does not make decisions. The parties
make the decisions, but the mediator helps them
along. You can do private mediation before or after
a Complaint has been filed. You can address custody,
child support, alimony, and property issues in
mediation. Mediation is generally less expensive
and not as time-consuming as court. The parties
control the outcome. The entire process can be settled in one day,
and you can leave a private mediation
with a binding settlement document. The
process is very civil and dignified. It can set the
tone for how the parties deal with each other from
that point forward. If the parties are able to resolve
the issues incident to their separation at mediation,
typically they work together and treat each other
better in subsequent dealings with children or otherwise.
You do not necessarily need a lawyer for
mediation, but we recommend it. A non-lawyer
mediator will not know the law. Without an attorney,
you could lose or waive rights you did not
know you had.
Contact David R. Huffman
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