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North Carolina Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in North Carolina, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
The plaintiff or defendant in the suit for divorce must have resided in the State for a period of six months prior to filing. The divorce may be filed in the either county in which the parties reside. (North Carolina Statutes - Chapter 50 - Sections: 50-8)
Grounds for Filing:The Complaint for Divorce must declare the appropriate North Carolina grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
The court may grant divorces from bed and board on application of the party injured, made as by law provided, in the following cases if either party:
(1) Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year.
A spouse must commit one of the following acts: (1) Abandons his or her family. (2) Maliciously turns the other out of doors. (3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies (4) Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome. (5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome. (6) Commits adultery. (North Carolina Statutes - Chapter 50 - Sections: 50-5.1 and 50-6)
Filing Spouse Title:Plaintiff. The Plaintiff is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Defendant. The Defendant is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:In the General Court of Justice, __________ Division, North Carolina, __________ County. This is the North Carolina court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Complaint for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to North Carolina law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Domestic Civil Action Cover Sheet, Civil Summons, Verification, Marital Settlement Agreement, and Declaration Under the Uniform Child Custody Jurisdiction Act.
Court Clerk's Title:District Clerk's Office. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Since North Carolina is an "equitable distribution" state, the marital property shall be divided in an equitable fashion. Equitable does not mean equal, but rather what is fair. The court will encourage the parties to reach a settlement on property and debt issues otherwise the court will declare the property award.
In the event that the parties can not agree on how there marital property will be divided, there shall be an equal division by the court using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable. If the court determines that an equal division is not equitable, the court shall divide the marital property and divisible property equitably. The court shall consider all of the following factors under this subsection: (1) The income, property, and liabilities of each party at the time the division of property is to become effective. (2) Any obligation for support arising out of a prior marriage. (3) The duration of the marriage and the age and physical and mental health of both parties. (4) The need of a parent with custody of a child or children of the marriage to occupy or own the marital residence and to use or own its household effects. (5) The expectation of pension, retirement, or other deferred compensation rights that are not marital property. (6) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker. (7) Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse. (8) Any direct contribution to an increase in value of separate property which occurs during the course of the marriage. (9) The liquid or nonliquid character of all marital property and divisible property. (10) 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. (11) The tax consequences to each party.(12) Any other factor which the court finds to be just and proper. (North Carolina Statutes - Chapter 50 - Sections: 50-20)
Restoration or Name Change:Any woman whose marriage is dissolved by a decree of absolute divorce may, upon application to the clerk of court of the county in which she resides setting forth her intention to do so, change her name to any of the following: (1) Her maiden name; or (2) The surname of a prior deceased husband; or (3) The surname of a prior living husband if she has children who have that husband's surname. (North Carolina Statutes - Chapter 50 - Sections: 50-12)
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including: (1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation; (2) The relative earnings and earning capacities of the spouses; (3) The ages and the physical, mental, and emotional conditions of the spouses; (4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others; (5) The duration of the marriage; (6) The contribution by one spouse to the education, training, or increased earning power of the other spouse; (7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child; (8) The standard of living of the spouses established during the marriage; (9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs; (10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support; (11) The property brought to the marriage by either spouse; (12) The contribution of a spouse as homemaker; (13) The relative needs of the spouses; (14) The federal, State, and local tax ramifications of the alimony award; (15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. (16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property. (North Carolina Statutes - Chapter 50 - Sections: 50-16)
Counseling or Mediation Requirements:Whenever it appears to the court, from the pleadings or otherwise, that an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation. Issues that arise in motions for contempt or for modifications as well as in other pleadings shall be set for mediation unless mediation is waived by the court. Alimony, child support, and other economic issues may not be referred for mediation. The purposes of mediation under this section include the pursuit of the following goals: (1) To reduce any acrimony that exists between the parties to a dispute involving custody or visitation of a minor child; (2) The development of custody and visitation agreements that are in the child's best interest; (3) To provide the parties with informed choices and, where possible, to give the parties the responsibility for making decisions about child custody and visitation; (4) To provide a structured, confidential, nonadversarial setting that will facilitate the cooperative resolution of custody and visitation disputes and minimize the stress and anxiety to which the parties, and especially the child, are subjected; and (5) To reduce the relitigation of custody and visitation disputes. (North Carolina Statutes - Chapter 50 - Sections: 50-13.1)
Child Custody:When minor children are involved in a divorce, the North Carolina courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
An order for custody of a minor child entered shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including 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 and shall make findings accordingly.
An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent. (North Carolina Statutes - Chapter 50 - Sections: 50-13.2)
Child Support:North Carolina child support guidelines are based on the Income Shares Model for calculating child support. The monthly support amount determined by applying the guidelines is divided proportionally according to each parent's income. These two support amounts are then offset to establish which parent will pay the other parent for support of the child. All income is typically verified by examining past W-2's and child support worksheets are available at the courthouse.
Payments ordered for the support of a minor child shall be in such amount as to meet the reasonable needs of the child for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child and the parties, the child care and homemaker contributions of each party, and other facts of the particular case.
Payments ordered for the support of a minor child shall be on a monthly basis, due and payable on the first day of each month. The requirement that orders be established on a monthly basis does not affect the availability of garnishment of disposable earnings based on an obligor's pay period.
The court shall determine the amount of child support payments by applying the presumptive guidelines. However, upon request of any party, the court shall hear evidence, and from the evidence, find the facts relating to the reasonable needs of the child for support and the relative ability of each parent to provide support. If, after considering the evidence, the court finds by the greater weight of the evidence that the application of the guidelines would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the court may vary from the guidelines. If the court orders an amount other than the amount determined by application of the presumptive guidelines, the court shall make findings of fact as to the criteria that justify varying from the guidelines and the basis for the amount ordered. (North Carolina Statutes - Chapter 50 - Sections: 50-13.4)
Copyright Notice: The above synopsis of North Carolina divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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