The Del Ré Law Firm, PLLC

1111 Sabbath Home Rd SW Holden Beach NC 28462
Phone: (910) 842-5193
Toll Free: (888) 287-4224
Fax: (910) 842-8545
Email: ben(at)delrelaw.com

North Carolina Divorce FAQ’s

 

  1. What are the legal grounds (reasons) for divorce in North Carolina?
  2. How long do I have to be a resident of North Carolina before I can file for divorce?
  3. What if my spouse doesn’t want the divorce?
  4. What exactly does living separate and apart for 12 months mean? Can we still live in the same house?
  5. If marital relations are resumed within the 12 month separation period, does that mean the separation period starts over?
  6. Does North Carolina require marital fault by one of the parties in order to get divorced?
  7. What does the actual process of filing for a divorce consist of in North Carolina?
  8. Can a couple become legally married if they have lived together for years? (Does common law marriage exist in North Carolina?)
  9. What does an absolute divorce mean?
  10. When can I change back to my maiden name?
  11. When can I remarry?
  12. Can I get an annulment?
  13. Can I get my divorce decree before the other issues – equitable distribution, child support, child custody and alimony have been settled?
  14. Do I have to actually go to court to get a divorce?

 

  1. What are the legal grounds (reasons) for divorce in North Carolina?

There are 2 grounds (or reasons) for divorce in North Carolina.
 
The first is that you and your spouse must be living separate and apart for one year. At the time of separation, at least one of you must intend for the separation to be permanent. It does not matter if one of the parties wishes to get back together. It’s also not necessary that you have any type of written document verifying the separation date. You simply need to know when it happened.
 
The other, which is almost never used, is that one spouse has incurable insanity and you have been living apart for three years.

 

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  1. How long do I have to be a resident of North Carolina before I can file for divorce?

Either you or your spouse must have been a resident of North Carolina for 6 months immediately preceding the filing of the divorce complaint.

 

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  1. What if my spouse doesn’t want the divorce?

It doesn’t matter. As long as you’ve been living apart for one year, and correctly filed the paperwork, you can get a divorce.

 

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  1. What exactly does living separate and apart for 12 months mean? Can we still live in the same house?

Separate and apart means that you live in different residences. It’s not enough to be in different beds, and refraining from sexual relations. If you are under the same roof, you are not considered separate and apart.

 

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  1. If marital relations are resumed within the 12 month separation period, does that mean the separation period starts over?

It used to be that any marital relations would cause the separation period to start over. The law was amended in 1987. It now focuses on the ‘totality’ of the circumstances. Isolated incidents of sexual intercourse are not viewed as resuming marital relations, unless the circumstances show that there is also a resumption of other marital activities.

 

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  1. Does North Carolina require marital fault by one of the parties in order to get divorced?

No, NC is a no fault state. As long as you file the paperwork correctly, meet the residency requirements, and live apart for 12 months, you can get divorced in North Carolina.

 

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  1. What does the actual process of filing for a divorce consist of in North Carolina?

The actual process of divorce is quite simple. It’s separate from issues of equitable property distribution, child support, child custody, and alimony. You or your lawyer must file a divorce complaint with the clerk of court’s office.
 
The complaint must be delivered to your spouse, either by certified mail or via the sheriff’s office. After a specified waiting period, you appear in court and your divorce is granted. This is an absolute divorce, and it means that you are officially divorced and can now remarry.

 

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  1. Can a couple become legally married if they have lived together for years? (Does common law marriage exist in North Carolina?)

No, it does not.

 

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  1. What does an absolute divorce mean?

An absolute divorce means that the bonds of marriage created by your wedding ceremony are now terminated. This has several significant implications:
 
You cannot make any further claims for property division or alimony. If you do not already have a court filing on these issues, you lose all rights. An absolute divorce has no bearing on child custody or child support rights. These rights remain with a parent regardless of marital status.
 
You can now remarry.
 
Your tax status will change when filing your tax return.
 
You are officially cut off from any inheritance from your spouse.
 
It can also alter the legal way you own your home with your ex spouse.

 

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  1. When can I change back to my maiden name?

You can add that to your divorce complaint, and request that a name change be included in the divorce judgment.

 

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  1. When can I remarry?

You cannot remarry until an absolute divorce is granted. This means you have obtained an official decree from the courts granting you a divorce.

 

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  1. Can I get an annulment?

Typically, no. There are certain instances, like where the couple is found to be nearer of kin than first cousins, between double first cousins, if one spouse is under the age of 16, or if one spouse is already married. There are a few other instances, but they are extremely rare. Contact our office is you have any questions.

 

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  1. Can I get my divorce decree before the other issues – equitable distribution, child support, child custody and alimony have been settled?

Yes, but if you do, you will lose your right to property distribution and alimony. Once a divorce judgment has been made, no claims can be brought forth about these 2 issues. A divorce decree does not affect child custody or child support issues. Parents retain the right to these no matter what their current marital status.

 

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  1. Do I have to actually go to court to get a divorce?

No. There are other ways to settle your case. You can settle it through mediation or arbitration. Mediation is the most common. Both parties meet with an impartial and independent mediator to help them reach an agreement.
 
Mediation is the most common, and is required in North Carolina for child custody and equitable distribution. In mediation, you and your spouse meet with a neutral mediation specialist to try and reach an acceptable agreement.
 
You should still have independent representation throughout the process. This ensures that your rights are protected, and that you understand the legal ramifications of signing any proposed agreement. Mediation is not binding, and if you can’t agree with your spouse on an agreement, then a court date is set.
 
A method used much less often is arbitration. This involves handing the disputed issues over to an independents arbitrator who decides the outcome.
 
These types of alternative dispute resolution procedures can be used at any stage of the proceedings, including after a lawsuit is filed.

 

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