Whether you live in North Carolina or elsewhere, divorce for any married couple will accomplish two things: (1) severing the marital relationship, and (2) dividing assets and debts. If one of them will be unable to be self-supporting after the divorce, the issue of alimony may arise. If there are minor children, the issues of child custody and support must be resolved.
Residency and where to file
In order to file for divorce in North Carolina, either you or your spouse must be a resident of North Carolina for at least 6 months. You may file in the Superior Division or the District Division of the General Court of Justice in the county where either party resides.
The simplest procedure is an uncontested divorce, where you and your spouse reach an agreement about all issues. You begin by preparing a Complaint for Divorce, along with various supporting documents. For an uncontested divorce, one of these documents will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.
Grounds for divorce
Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. North Carolina, like most states, has what are commonly called no-fault grounds for divorce, and two traditional fault-based grounds. To get a no-fault divorce in North Carolina, you need to state in the Complaint for Divorce that “the parties have been living separate and apart without cohabitation for one year.” You must live apart, but isolated sexual relations during the one-year period do not preclude a divorce.
There are two fault-based grounds for divorce: confinement for incurable insanity for three years, and incurable mental illness based on examination for three years. However, in most cases, there is no reason to use either of these, since they add complexity to the process by requiring proof.
A divorce involves dividing property and debts between you and your spouse. Generally, each party will keep separate property, which is property:
- acquired before marriage, or by inheritance or a non-spousal gift during the marriage
- acquired in exchange for separate property
- consisting of an increase in value of, or income derived from, separate property, and
- any professional license and business license that would terminate on transfer
All other property is marital property (if acquired during the marriage and before the date the parties separated), or divisible property (if acquired after the date of separation). Marital and divisible property is divided equally between the parties, unless the judge determines equal division is not equitable, based upon consideration of the following factors:
- each party’s income, property, and liabilities when the division of property is to become effective
- any obligation for support arising out of a prior marriage
- the duration of the marriage, and each party’s age, and physical and mental health
- a custodial party’s need to occupy or own the marital residence or household effects
- any pension, retirement, or other deferred compensation that is not marital property
- any equitable claim to, interest in, or contribution to, the acquisition of marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, wage earner, or homemaker
- any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse
- any direct contribution to an increase in value of separate property which occurred during the course of the marriage
- the liquid or non-liquid character of all marital property and divisible property
- the difficulty of evaluating any component asset or any interest in a business, corporation, or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party
- the tax consequences to each party
- acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue, or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution
- any other factor which the court finds to be just and proper
Alimony in North Carolina
To award alimony, the court must find that the party seeking alimony is a dependent spouse, and that an award of alimony is equitable after considering “all relevant factors,” including those listed below. One big factor is whether a party is determined to have participated in an act of illicit sexual behavior during the marriage and before or on the date of separation. If it was the party seeking alimony, then alimony is barred. If it was the other party, alimony is required. If it was both parties, the court must decide the matter after considering all of the circumstances.
Absent an agreement of the parties, the court will determine the amount, duration, and manner of payment of alimony after considering all relevant factors, including:
- the marital misconduct of either party
- the parties’ relative earnings and earning capacities
- each party’s age, and physical, mental, and emotional condition
- each party’s amount and sources of earned and unearned income, including earnings, dividends, and benefits such as medical, retirement, insurance, and social security
- the duration of the marriage
- a party’s contribution to the education or increased earning power of the other party,
- the extent to which the earning power, expenses, or financial obligations of a party will be affected by reason of serving as the custodian of a minor child
- the standard of living established during the marriage
- each party’s education, and the time needed to acquire education or training to enable the party seeking alimony to find employment to meet his or her economic needs
- the relative assets and liabilities of the parties, and the relative debt service requirements of the parties, including legal obligations of support
- the property brought to the marriage by either party
- the contribution of a party as homemaker
- the relative needs of the parties
- the tax ramifications of the alimony award
- any other factor relating to the economic circumstances of the parties that the court finds to be just and proper
- whether income received by either party was considered by the court in determining the value of a marital or divisible asset in an equitable distribution of property
Child custody in North Carolina
If you and your spouse have any minor children, there will have to be a custody determination. This is a matter of determining how the children’s time will be divided between the parents, and how decisions will be made. If you and your spouse reach a custody agreement, it will be accepted by the judge unless it is determined not to be in the child’s best interest. Otherwise, the judge will decide the issue “as will best promote the interest and welfare of the child,” and must consider any acts of domestic violence, the safety of the child, and the safety of either party.
Child support in North Carolina
Child support is determined by the North Carolina Child Support Guidelines, which, along with child support worksheets, may be found at the state government’s website.
The wife may resume her maiden name, the surname of a deceased prior husband, or a living ex-husband if there are children with that name. The husband may resume any pre-marriage name.
If you are considering an online divorce, LegalZoom can help you get the divorce documents you need. We help you fill out the paperwork and check it for completeness and accuracy, and provide step-by-step instructions for filing and completing your divorce.
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