We've Been Separated for a Year ... Now What? The Basics of NC Divorce

Couple FightingMany of our clients have heard or understand that they must be separated for one year before they can obtain a divorce (if not, see our previous post here).  Many of them have questions about what to do to finalize their NC divorce once the year has passed.

WHAT IS AN ABSOLUTE DIVORCE?

An absolute divorce in North Carolina is the judicial severing of the marital relationship between husband and wife.  Although much of the disentanglement of ending a marriage often takes place through a Separation Agreement, the only way to legally end the actual marriage (besides the death of one of the spouses or an annulment, which aren’t covered by this post) is by the entry by of a Judgment of Absolute Divorce by a District Court Judge or, in some cases, the Clerk of Superior Court. The entry of the divorce judgment has important consequences such as ending the couple’s right to inherit from one another and changing the way the couple holds title to real estate.  In many instances, any claims spouses have against one another for alimony, post-separation support and division of marital assets are cut off by the entry of the divorce.

HOW IS AN NC DIVORCE OBTAINED?

An NC divorce judgment can only entered after a Complaint (a lawsuit) is filed by one of the parties.  One of the spouses must have lived in North Carolina continuously for at least six months before the case is filed.  Once the Complaint is filed, it must be served on the other party.  This is generally done by certified mail or by having the Sheriff in the county where the defendant resides delivery a copy to the defendant.  Once the defendant has been served with the Complaint, he or she generally has 30 days to file an Answer, admitting or denying the allegations in the complaint.  The allegations regarding divorce are usually limited to when and where the parties were married, when they separated, and that they’ve been separated for over one year at the time the Complaint was filed. Women seeking to resume the use of their maiden name upon entry of the divorce should include a request to do so in the Complaint (if they are the Plaintiff) or the Answer (if they are the Defendant).

Once the time to file the Answer has expired or an Answer admitting all of the allegations contained in the Complaint has been filed, either party may request that a Judgment for Absolute Divorce be entered.  This Judgment is usually entered by a District Court Judge in open court; however, in certain limited situations, North Carolina law allows the Clerk of Superior Court to enter the divorce judgment.  The NC divorce process generally takes approximately 60-90 days to be completed from the filing of the lawsuit to the entry of the judgment.  It is important to understand that the divorce judgment must be entered before either of the parties can re-marry.  We encourage our clients not to make any plans for a marriage ceremony until their divorce judgment has been entered, because occasionally delays occur which cannot be predicted.

DO I NEED A LAWYER?

It is possible for individuals to represent themselves in divorce proceedings in North Carolina.  However, the entry of a Judgment of Absolute Divorce has many important legal ramifications.  We recommend seeking the advice of an experienced family law attorney before you make a decision on whether or not you should represent yourself.  Many family law attorneys will charge a relatively minimal flat fee if their services are limited to obtaining an NC divorce for a client.  If you are interested in learning more about obtaining a divorce, please contact our office to arrange for a consultation.

 

 

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