Know the Laws: North Carolina
UPDATED October 19, 2012
This section has information about divorce in North Carolina.
back to topWhat are the basic steps for filing for divorce in North Carolina?
The following steps are meant to be a guide in the divorce process but you should talk to a lawyer to get specific advice for your situation:
- You must meet the residency requirements of NC, which means that one spouse has lived in NC for at least six months prior to the filing.
- You and your spouse must have been living separately for one year (assuming you are not filing under the insanity ground).
- After you and your spouse have been separated for at least one year, you or your lawyer file a divorce complaint and summons with the clerk of court in the county of your residence.
- The divorce complaint and summons must then be served (delivered) to your spouse,* either by the sheriff or by certified mail.**
- If your spouse disagrees with anything in the divorce papers, then s/he will have the opportunity to file papers telling his/her side. This is called “contesting the divorce.” If s/he contests it, then you will have a series of court appearances to sort the issues out. If your spouse agrees with everything, then s/he could sign the papers and send them back to you and the court. If your spouse agrees with everything and signs the papers, this is called an “uncontested divorce.” Also, if a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway.
- Afterwards, you will have a hearing in front of a judge. The judge has to enter a judgment declaring you divorced. You will be officially divorced when the judge signs the judgment and the clerk file stamps it.
The divorce is only one part of the process. It is just the judicial order that ends your marriage. The complexity of a divorce case arises in deciding other issues such as child custody, child support, division of property, and alimony.
(But you must file a claim and preserve your right to property BEFORE a divorce is granted). These issues are resolved either through negotiation between you and your spouse (separation agreement) or through a court process.
* NCGS § 50-8
** NCGS 1A § 4(j)(1)
back to topWhat are the legal effects of a divorce?
There are many effects to the entry of a divorce:
- Once you are divorced, you cannot go back and ask for alimony or division of property. This must be resolved as part of the divorce and properly filed with the court prior to the entry of the divorce judgment. You should consult an attorney to protect these rights. See our NC Finding a Lawyer page for legal referrals.
- It changes your tax filing status.
- It enables you to remarry.
- You can change your name. In your complaint for divorce or in your answer to your spouse’s complaint, you may petition the court to change your name to either your maiden name, the last name of a prior deceased husband, or the last name of a prior living husband if you have children who have that husband’s last name.
- It cuts off your rights to automatically inherit money or property from your spouse upon his/her death.
- If you own a house with your spouse, it can alter the way your home is owned depending on the division of property agreement or depending on the court’s order.
back to topHow will custody, child support, alimony and property division be decided?
The judge will not address these issues at time of divorce.
Property distribution and alimony need to be filed before divorce or resolved by separation agreement before divorce. You should consult an attorney for assistance in negotiating and drafting an agreement. See our NC Finding a Lawyer page for legal referrals.
If you and your spouse are not able to agree on these issues, some people try mediation or arbitration as alternatives to court - however, mediation is generally not recommended for domestic violence victims. If those options do not work for you, you will have to file a separate complaint seeking relief in court prior to the divorce and the judge will likely make the final decision on these issues. Regardless of which approach you choose, you should consult an attorney first.
Thank you to attorney Lisa M. Angel
from the Rosen Law Firm
for her assistance with this page.
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