Getting a Divorce in North Carolina

For most North Carolina divorces, courts require that spouses be legally separated* for one year.

Divorce can be an emotional, stressful time in a person's life. No matter how good a couple's relationship was in the beginning, spouses can grow apart, resentful or disappointed in what their personal life has become. If marriage is no longer a viable option, separation or divorce is a transition that many couples choose.

Rice Law attorneys represent transitioning families in divorce filings and proceedings. Our attorneys are also experienced in complex divorce areas such as child support, custody, property distribution, and alimony.

Common Questions

• On what grounds can I file for divorce?
• Can you explain the process — the court, parties, and title of actions?
• Do I need to appear and testify before a judge?
• Does where I live impact where I file for divorce?
• How much will I receive|give for support?
• How do I get a divorce?
• How long does it take to become legally divorced?
• Can I get an annulment?
• What does living "separate and apart" mean?
• What if my spouse doesn't want a divorce?
• When can I remarry?

*On what grounds can I file for divorce?

NC divorce laws provide two grounds for divorce:

Husband and wife living both separate and apart without cohabitation for one year.

Incurable insanity or mental illness of one of the spouses, based on a period of confinement or examination.

Can you explain the process — the court, parties, and title of actions?

A legal request to legally end the marriage [Complaint for Divorce] is filed in District Court. The Plaintiff [spouse filing for divorce] typically works with a lawyer to file this action (Complaint). The Complaint must be verified under oath.

Note: Because the Complaint must be verified, obtaining a Separation Agreement can be one way to clearly document when you and your spouse first chose to live apart.

The Complaint is then forwarded to the Defendant [person with action/complaint against them] via a Summons. The Summons can be delivered via a variety of methods, including publication.

Upon receipt of summons [being served] the Defendant is given a specific number of days (generally 30 days) to answer or respond to the Complaint [lawsuit].

Note: In divorce filings it is common for the Defendant to file no answer.

In court, documented|verified evidence is presented and/or in-court testimony is heard from the spouse requesting the divorce [Plaintiff].

A Judgment of Divorce is based the grounds for divorce.

The judgment is presented. When approved the judgment from the divorce hearings results in receiving a divorce [legal document: Judgment of Absolute Divorce].

Do I need to appear and testify before a judge?

If your divorce is uncontested and Summary Judgment is used, you don't have to appear in court for the divorce hearing. Your Rice Law attorney will appear on your behalf to get your Decree of Divorce. However, we generally require our clients to appear and testify, because we believe the act of obtaining the divorce is important.

If your divorce is contested or Summary Judgment is not used, the court may call your case for trial. In such a case, the Plaintiff and their attorney appear in court. Often the date of separation is the issue that the Defendant wishes to contest and they may appear and offer evidence in an attempt to disprove the Plaintiff's allegations regarding the date of separation.

Summary Judgment is a simplified divorce procedure that is based on both spouses:

• Living separate and apart without cohabitation for one year
• Agreeing to all terms of the divorce, with no issues to be decided by the court

...and the court's finding that all facts from non-testimony evidence are presented by affidavit, verified motion, or other verified pleading.

Does where I live impact where I file for divorce?

To file, one of the spouses must have resided in North Carolina for at least six months.

The action is normally filed in the county you live in — New Hanover or Pender. If your spouse is filing, it is filed in the county where one of the spouses resides. There are other rules for filing court location if you\spouse relocate outside the state; if such applies to you, ask your attorney for details.

How much will I receive|give for support?

Support is paid by the Supporting Spouse and paid to the Dependent Spouse per the amount specified in the judgment. Support can be in various forms; see child support, alimony, and post-separation support.

How do I get a divorce?

You have to file a Complaint with the court asking for a divorce. The Complaint is the starting point of the divorce process.

How long does it take to become legally divorced?

In general, it takes six weeks. However, the process could be longer; it includes response periods and scheduling (court activity levels).

Can I get an annulment?

An annulment is a court decree that says there was never a marriage, while divorce is a court declaration that says the marriage contract was broken. Hence, annulments are more difficult to prove. Examples of grounds for an annulment include:

• The spouses are nearer of kin than first cousins
• Either spouse is under age 16
• The marriage was entered under the belief that the woman was pregnant
• Either spouse is physically impotent
• Either spouse is incompetent
• The marriage is bigamous

What does living "separate and apart" mean?

Under previous law, "separate and apart" meant the absolute cessation of sharing a residence and sexual relations. Under the current laws, isolated sexual contact may not stop the one-year period. However, it isn't black-and-white in this area — there is no specified amount of contact indicated in the law that would cause the one-year separation to start over.

What if my spouse doesn't want a divorce?

You can get a divorce even if your spouse doesn't want to if you have been separated for one continuous year and the paperwork has been processed.

When can I remarry?

You can only remarry after the Decree of Divorce has been granted by the court. You should generally wait at least thirty days following the entry of your Divorce Judgment before you remarry.