Legal Overview

North Carolina is a no-fault divorce state. In order to file for divorce in North Carolina, you must have been a resident for at least six (6) months. There are two grounds upon which one can obtain a divorce in North Carolina, a divorce based upon separation for one year and incurable insanity. Read our detailed legal summary of North Carolina, including divorce grounds, residency requirements, child custody, child support, alimony, mediation, property, settlement agreements, and annulments.

Divorce Process

Absolute Divorce

Absolute Divorce in North Carolina is the legal ending of your marriage so that you may marry another person. Absolute Divorce in North Carolina alone does not address the issues of child custody, child support, property division or alimony. The consequences of Absolute Divorce if you have not addressed your marital estate prior to the Absolute Divorce are: 1. Alimony is barred, and 2. Property goes to the person with title. If an Absolute Divorce is finalized and you have not raised property and/or alimony issues properly before the Court prior to the finalization, then you no longer are able to raise these concerns before the Court.

Settlement Agreement

A settlement agreement is a written contract between the parties that sets forth their rights, duties, and obligations that arise out of their separation and divorce and may include such things as the division of their property, spousal support, attorney’s fees, custody of their children, and child support. Such agreements are encouraged since they may amicably settle the rights of the husband and wife in the estate and property of the other.

Residency Requirements

If you seek to file a divorce in North Carolina, it is important to be aware of the residency requirements prior to filing for your divorce. In order to file for divorce one of the parties must have been a resident for at least six (6) months prior to filing.

Grounds for Divorce

North Carolina is a no-fault divorce state. There are two grounds for divorce in North Carolina; separation based on one year separation or incurable insanity.

One Year Separation

If a husband and wife have lived separate and apart for one year with the intent of ending their marital relationship, either party may file for divorce. Spouses living in the same house, even if in different rooms, are not living separate and apart for the purposes of the one year separation. Isolated incidents of sexual intercourse during the separation period does not negate the separation period. However, the date of separation will be determined by all of the surrounding circumstances and on a case by case basis.

Incurable Insanity

If a husband and wife have lived separate and apart for three years because of incurable insanity, one of them, the sane spouse, may file for divorce. If the insane person is living with the sane spouse, on a trial basis only, this will not negate the element of living separate and apart and the court will not assume that the parties have cohabitated in this situation.

Mediation

Mediation is a form of Alternative Dispute Resolution (ADR). Other common forms of ADR in North Carolina include arbitration and judicial settlement conferences. Mediation is mandatory for all Equitable Distribution cases before these cases may proceed before a Court. Child Custody Mediation is also mandatory in North Carolina before a case may proceed to Court. There are some instances where Mediation may be waived upon a proper showing of good cause to the Court.

Annulments

Unlike a divorce that dissolves a valid marriage, and annulment is a legal decree that a marriage is null and void. There are only a certain number of instances in which the Courts in North Carolina will grant a party an annulment. These include: incest, marriage between double first cousins, marriage between a party that is under the age of 16, marrying a person who is already married to another person, impotency, or any illness which prohibits one of the parties from understanding the concept of marriage or who is unable to exhibit free will in agreeing to marry someone.

Division of Property

North Carolina law declares that all property, both real and personal, accumulated during the marriage by the parties’ efforts (exclusive of gifts and inheritances) shall be divided equitably between the parties, regardless of which party holds title or ownership of that property. The division of the property will be equitable, which is usually 50/50 but not always the case.

The court uses a number of factors in deciding whether to give one party more than 50% of the marital estate. Parties may resolve property questions by entering into a written agreement at any time before or during separation. However, if property questions are not settled by written agreement, a claim for equitable distribution must be filed with the court prior to the granting of a divorce or rights to an equitable distribution of property will be forfeited. You should consult an attorney about these very important and complex property issues. If the parties cannot agree upon the division of property, the law provides the means of bringing the issue before the court, which will divide all of the property in such manner as it finds to be equitable.

Spousal Support

Alimony is called spousal support. In North Carolina, alimony can be obtained only when the financially dependent spouse can demonstrate that the supporting spouse has the ability to pay. Because of the complexity of the grounds for alimony, an attorney should be consulted regarding any questions about this issue. Marital misconduct is relevant to an alimony claim, however, it only affects the amount and duration of alimony. A spouse seeking alimony can be held responsible for misconduct even after the parties have separated and until the final resolution of the alimony claim. A claim for alimony is forfeited if it is not put forward before the divorce is granted by the Court.

Child Custody

This is the most crucial issue in most domestic cases. In determining the custody of minor (under the age of eighteen) children, the court is guided by one standard—the best interest of the child. Factors that the Court take into consideration when determining what is in the child’s best interest include: the age of the parent and the child, the physical and mental condition of the parent and child, the relationship existing between each parent and each child, the needs of the child, the role played by each parent in the upbringing and caring for the child, and the home where the child will live. The court will normally set visitation rights if the parents cannot voluntarily agree upon satisfactory arrangements.

An important factor to the court in most custody cases is which parent will be the most likely to see to it that the non-custodial parent remains a strong part of the child or children’s lives. Once a determination of permanent child custody is made, it can only be changed by proving to the court that there is a substantial and material change of circumstances in relation to the child(ren). Therefore, child custody determinationsare never permanent and can be changed once the party has shown a substantial and material change of circumstance.

Child Support

Normally, the party not having custody will be called upon to contribute to the support of the minor child (ren). This could be an obligation of the mother as well as the father, or both, if a third person has custody of the child. Child support begins once the child is born and normally continues until the child turns 18 or is emancipated. North Carolina is guided by the needs of the child(ren) and the ability of the supporting parent(s) to pay.

The use of North Carolina’s Child Support Guidelines provides an amount of child support that is presumed to be correct, but the court may deviate from these guidelines in appropriate circumstances. The Guidelines takes the gross monthly income of the mother and the gross monthly income of the father, along with healthcare premiums and child care costs and comes up with the amount of support for each parent. These Guidelines and sample calculations can be found on the internet. The award is subject to change so long the obligation to support remains. It may be increased or decreased if a material change occurs in the circumstances of either or both of the parents of the child.