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Divorce in North Carolina
Q. What if my spouse won't give me a divorce?
A. The judge is the person who grants a divorce, not your spouse. Once you have filed the divorce complaint at the courthouse, your attorney will serve a copy of the summons and complaint on your spouse, by sheriff or by certified mail. If no answer is filed within 30 days after service, you will probably be granted a divorce by default. If your spouse contests the divorce action by filing an answer denying one or more of the statements in your complaint, a hearing will be set during which the two of you can testify and the judge can decide what the truth is.
Q. Is my divorce final when the judge signs the judgment?
A. Yes. There is no waiting period after entry of judgment.
Q. Can I resume the use of my maiden name at the time of the divorce?
A. Yes. You may ask for the right to resume your maiden name in the divorce papers your lawyer files for you. This is routinely granted by the judge. Even if you do not ask for your maiden name back at the time of the divorce, you can file for resumption of your maiden name after the divorce is granted.
Q. Can I use "mental cruelty" or adultery as a ground for divorce here?
A. No. In North Carolina, the only ground for divorce that is ever used is separation for over one year. The other ground, three years' incurable insanity, is almost never used. Most divorces granted on separation grounds are uncontested. This is essentially a "no-fault" divorce with no proof necessary as to who left whom or what reason was involved. If at least one of the parties has been a legal resident of NC for six months preceding the filing of the divorce complaint and the separation was intended to be permanent, then the court can grant the divorce.
Q. If my marriage occurred in another state, can I file for divorce in this state?
A. Maybe, depending on whether you or your spouse fulfills the residency requirements of North Carolina law. Our laws state that you may file divorce here if you are a true legal resident of North Carolina and have been living here for at least six (6) months prior to the date of filing the divorce compliant. If your spouse is a legal resident of North Carolina and resides here, you may also file for divorce.
Q. Do I have to have "legal separation" to get a divorce here, or do I have to "file for separation" in North Carolina?
A. All you need to do to obtain a divorce in North Carolina is live separate and apart from your spouse for more than one year with the intention that the separation be permanent. You will testify to this in divorce court. You do not need to show the judge a copy of a separation agreement, since such a document doesn't necessarily prove that you have indeed separated from your spouse. There is no such thing as "filing for separation" in North Carolina, although there are certain cases in which a judge approved separation, which allows you to live separate and apart from your partner.
Q. Can the judge in North Carolina order a property division at the time of divorce?
A. After the divorce has been granted, the judge can divide the marital property of the couple if the divorce decree reserves the authority of the court to decide equitable distribution. The court would not have the power to divide the marital property if neither party asked the court to do so before the divorce judgment was entered or if the parties had already executed a separation agreement that fairly divided their property. You can't get a court-ordered property division if you don't file a claim for equitable distribution before your divorce is granted.
Q. What about alimony? Is that covered in my divorce?
A. The same rules apply as in equitable distribution (see above). The claim must be filed with the court -- in a complaint or counterclaim -- in order to preserve it for a hearing after the divorce decree is signed by a judge. If you haven't asked for alimony in a court paper before you get your divorce and reserved that issue for later ruling of the court in the divorce decree, you cannot get alimony.
Q. Who pays my attorney's fees in a divorce case?
A. The law states that each party is expected to pay his or her attorney's fees in regard to obtaining an uncontested divorce.
Q. When will I get my divorce?
A. After the summons and complaint are served on your spouse, he or she has 30 days in which to file an answer. This is the answer period. One of the following will occur:
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When a case is contested, the best interests of the child determine child custody. Between the mother and father, whether natural or adoptive, no presumption applies as to who will better promote the interest and welfare of the child. The court considers acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party.
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