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Separation and Divorce in North Carolina

Separation in North Carolina

How can I get legally separated in North Carolina?

A separation agreement or other written document is not required to be legally separated in North Carolina. To be considered separated from your spouse, you need to be living in different homes, and at least one of you needs to intend that the separation be permanent. In general, you are not legally separated if your relationship has ended but you still live in the same home, or if you live in separate homes without the intent to be permanently separated (for example, for work purposes).

What is a separation agreement?

A separation agreement is a private contract between spouses who are separated or plan to separate very soon. A separation agreement includes agreed-upon terms dealing with various issues related to the separation, such as which spouse is responsible for certain bills, whether one person will continue to live in the marital home, or where the children will live. A typical separation agreement includes the details of separation, property division, spousal support, and if there are children, child custody and support.

Do I need a separation agreement?

A separation agreement is not required to be legally separated from your spouse. However, a separation agreement can resolve many of the legal issues involved in the end of a marriage. For example, you can decide how to divide your property and whether one of you will pay alimony to the other. In some situations, spouses may request that the separation agreement become part of their final divorce order. Spouses who are able to resolve the issues related to their separation through a separation agreement can make those decisions themselves and avoid the need to go to court.

How do I get a separation agreement?

Separation agreements are generally prepared and negotiated by attorneys, who can tailor the agreement to the needs of your family. See the Finding an Attorney Help Topic for more information about finding an attorney to assist you.

What are the requirements for a separation agreement to be valid?

Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.

Can a separation agreement include decisions about child custody and child support?

Yes, you can include provisions about child custody and child support in a separation agreement. However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest. If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances.

What is a Divorce from Bed and Board?

In spite of the confusing name, a Divorce from Bed and Board (a “DBB”) is not a divorce. A DBB is a court-ordered separation. DBB orders are available only under limited circumstances where the spouse requesting the order can prove serious fault, such as adultery or drug abuse. Once you have separated due to a DBB order, you can still resolve issues related to the separation with a separation agreement, as if the separation had been voluntary. You can also file to ask the court to resolve issues such as property division and post-separation support through the DBB case. Once you are separated due to a DBB order, you will still need to wait one year and file for an absolute divorce to legally end the marriage.

What is post-separation support?

“Post-separation support” is a temporary form of spousal support paid by a supporting spouse to a dependent spouse who is in need of support, after separation but before divorce.

Divorce in North Carolina

What are the requirements for a divorce in North Carolina?

You are eligible to file for divorce, also called an “absolute divorce,” only after being separated for at least a year and a day. This means that you must have been living in different homes and that at least one of you intended that the separation be permanent during that time. To file for a divorce in North Carolina, either you or your spouse must currently live in North Carolina and must have lived in the state for at least six months before the divorce case is filed.

Does my spouse have to agree to the divorce?

No. As long as you are eligible for a divorce, your spouse does not have to agree to the divorce. If you file for divorce, your spouse does not have to complete or sign any paperwork, file anything with the court, or go to court for the divorce hearing. However, your spouse must receive proper legal notice of the divorce case that you file.

Can I get divorced after less than a year if I prove fault?

No. Unlike some other states, North Carolina only allows for no-fault divorce, which requires at least one year of separation.

What is required for a divorce based on incurable insanity?

This divorce requires that you and your spouse have been living apart for at least three years because of your spouse’s mental health condition, and that your spouse either has been institutionalized during that time or was found “insane” by a judge at least three years ago. This also requires the testimony of two specialty doctors that your spouse is currently “incurably insane.” In this situation, you do not need to show that you have intended for at least one year that the separation be permanent.

What is a “simple divorce”?

A “simple divorce” is an informal term for an absolute divorce in cases where the person filing only wants to be divorced, and is not requesting anything else, such as property division or spousal support.

How do I file for divorce?

To file for divorce, you must file the following documents with the clerk of court in the county where either you or your spouse lives:

  1. A complaint, stating the facts of your case and your request for a divorce. The courts do not provide a standard form for the complaint. If you intend to file for property division or spousal support, you must include all supporting facts and your requests in your complaint.
  2. A summons.
  3. A Domestic Civil Action Cover Sheet.
  4. An affidavit pursuant to the Servicemembers Civil Relief Act (SCRA), telling the court whether or not your spouse is in the military. This is intended to protect the legal rights of active-duty service members. You can search military records to find a person’s status here.
  5. You must pay the court filing fee. If you are unable to do so, you can apply to file as an indigent using this form.

View the North Carolina Divorce Packet Help Topic for more information.

How do I serve my spouse after filing the documents?

After filing your case, you must ensure that your spouse is “served” with a copy of your summons and complaint. In general, this means that you must either pay a fee to have the sheriff personally serve your spouse with the documents, or send the documents to your spouse via certified mail, FedEx or UPS. If you mail the documents, you must file proof that your spouse received them with the court. In some circumstances where you are unable to locate the other person, you may be able to serve him or her by newspaper publication, but specific requirements apply. Delivering the documents to your spouse yourself is not legal service.

What happens if I don’t file for property division or spousal support?

If no one files for property division (by filing a claim for “equitable distribution”) before the absolute divorce is final, both parties forever lose the right to ask a court for a property division. If this happens, you keep only the assets that are either titled in your name or in your possession. If you own any property in both names, this property will stay in both names even though you have divorced. The same rule applies to debts.

If no one files for spousal support before the absolute divorce is final, both parties forever lose the right to ask a court for alimony. Because a divorce permanently cuts off the right to equitable distribution and alimony, it is important to contact an attorney to assist you in preserving your rights.

What happens if I don’t file for child custody or child support before divorce?

Child custody and child support claims are not affected by divorce. Parents, regardless of marital status, can file at any time for custody of children under the age of 18. See the Child Custody Help Topic for more information. Similarly, parents can file at any time for child support for children under 18 (or still in high school and under age 20), regardless of marital status. See the Child Support Help Topic for more information.

What if my spouse doesn’t live in North Carolina?

You can get a “simple” absolute divorce in North Carolina no matter where your spouse lives, as long as you live in North Carolina at the time you file for divorce and have lived in North Carolina for the six months immediately before filing. Your spouse must be served with the divorce paperwork no matter where he or she lives, though rules about how to serve your spouse depend on the state or country where your spouse lives. In general, if you both lived in North Carolina during the marriage and your spouse has moved away, you can still pursue other claims against your spouse in North Carolina, including property division and spousal support.

What happens in court at a divorce hearing?

You must schedule a hearing for your absolute divorce in order to go before a judge and to receive the divorce. Simple divorce hearings are usually very quick. On the day of the hearing, you will testify under oath about the facts that show you are eligible to get divorced, and in most circumstances, you will leave court with a copy of your divorce judgment.

What do I need to do to prove that I have been separated for at least a year?

Your truthful testimony to the court, under oath, can prove your separation. You can also present other witnesses or documents. A separation agreement between you and your spouse can be helpful to show the court.

How do I change back to my prior last name after I get divorced?

You can include a request to resume your maiden name in your complaint for divorce and have the name change ordered in your divorce judgment. You can also file an application to resume your former name with the clerk of court. You can find the necessary form here.

What resources can help me file for divorce?

You can find more information about filing for divorce and necessary forms here. You can sign up here for one of Legal Aid of North Carolina’s clinics, designed to help people file for divorce on their own.

Equitable Distribution in North Carolina

What is equitable distribution?

Equitable distribution is a legal claim for property division, in which a spouse can ask the court for assistance in dividing the assets and debts acquired during the marriage.

What property can be divided in equitable distribution?

In North Carolina, “marital property” can be divided between the parties, while “separate property” is not divided. In general, assets or debts either spouse had before the marriage are “separate property” belonging to that spouse, and will not be divided. However, a spouse may have some claim to an asset based on active increases in value during the marriage. Assets and debts you acquired during the marriage are generally classified as “marital property” (exceptions include inheritances and gifts that either of you received from a third party during the marriage). A third category, called “divisible property,” applies to property obtained between separation and divorce. Divisible property may be divided between the parties depending on the circumstances.

How can I file for equitable distribution?

You can file a complaint requesting equitable distribution, in which you may also include other requests, such as alimony, child custody, child support, and/or divorce. If your spouse files a complaint against you, you can file your claims in an “answer” (the document filed with the court in response to a complaint). There is not a standard form to file for equitable distribution, and the process is often complicated. Some counties have local rules requiring specific information to be provided at particular times in the court case. You may contact an attorney to assist you with an equitable distribution claim.

Is marital property always divided 50/50?

Not always. North Carolina law presumes that an equal (50/50) division of marital property is “equitable,” or fair. However, the law provides for many factors that allow for an unequal distribution of property, in situations where an equal division would not be fair.

What will the judge consider in deciding how to divide property?

By law, an equal division of marital property is preferred, but if either spouse requests an unequal division and the judge finds that an unequal distribution would be fair, the court may give more of the property or debt to one party than the other. Judges consider many factors in deciding how to divide property. These factors include the incomes, property, and debts of both parties; the parties’ ages and health; the length of the marriage; the contributions of each party to the other’s earning power; the tax implications; and more. Marital misconduct is not a factor in equitable distribution except in cases of financial misconduct after separation. You can see the entire list of factors here.

Alimony in North Carolina

What is alimony?

Alimony is support paid by one spouse to the other, usually starting after divorce.

Who is entitled to alimony?

“Dependent spouses” are entitled to receive alimony from “supporting spouses.” A dependent spouse is someone who is financially dependent on and in need of support from their spouse, who is then known as the supporting spouse. Husbands and wives can both be either “dependent” or “supporting” spouses.

How much alimony does a dependent spouse receive?

There are no guidelines or formulas in North Carolina law to determine how much alimony a dependent spouse should receive. Instead, the judge determines how much alimony is appropriate after hearing the facts of the case.

How long does alimony last?

There are no guidelines or formulas in North Carolina law to determine how long alimony should last. Instead, the judge decides this depending on the facts of the case. Regardless of the time period initially set by the judge, alimony ends if the dependent spouse remarries or moves in with a new romantic partner, or if one of the parties dies.

What will the judge consider in deciding whether to grant alimony?

By law, judges consider many factors in deciding whether to grant alimony, including how much each party earns and is capable of earning; the age, education, and health of both parties; the length of the marriage; the parties’ property, contributions during the marriage, and needs; marital misconduct; and more. You can view the entire list of factors here.

How does cheating affect alimony?

North Carolina law provides that “illicit sexual behavior” will affect alimony. A dependent spouse who cheated on the supporting spouse before separation loses the right to alimony. A supporting spouse who cheated on the dependent spouse before separation will be forced to pay alimony. If both parties cheated on each other during the marriage, the judge has discretion to decide whether to order alimony. An exception applies if the cheating was “condoned,” or forgiven, by the other spouse.

Can bad actions other than cheating affect alimony?

Yes. Judges also consider other forms of marital misconduct, which include abandonment, cruel treatment, financial misconduct, alcohol or drug abuse, and involuntary separation if one of the spouses is imprisoned. The entire list of behavior defined as marital misconduct can be seen here.

Does alimony count as income?

Beginning on January 1, 2019, and affecting alimony granted through a separation agreement signed after that date or a court order entered after that date, alimony is no longer included in the calculation of a dependent spouse’s gross income.

Enforcement in North Carolina

What happens if my ex-spouse doesn’t follow our court order?

If the other party does not follow a court order, you can file a Motion for Contempt and/or a Motion for Order to Show Cause, in which you tell the court what part of the order is being ignored and ask the judge to hold that person in contempt of court. If the judge finds that the other party violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees. An attorney can assist you with this process.

What happens if my ex-spouse doesn’t follow our separation agreement?

If your separation agreement was included in a court order, such as your divorce decree, you can ask the court to hold the person in contempt of court (see above). If not, you can enforce your separation agreement by suing your former spouse for breach of contract. An attorney can assist you with this process.

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