There’s nothing fun or easy about getting a divorce. When you said your vows, you had every intention of honoring them for the rest of your life.
But nobody can predict how life will change, and sometimes, despite our best intentions, marriages must end.
The key to easing the process comes from knowledge. Understanding the laws and procedures surrounding your divorce allows you to move smoothly through the dissolution of your marriage.
The more you know about how divorce works, the better prepared you are to come through with what’s important to you.
This detailed guide will help you understand all of the major points related to getting divorced in North Carolina.
It will discuss types and reasons for divorce, how to find the right attorney, how to file for divorce, what to expect with assets and child custody, and more.
Types of Divorce Laws in North Carolina
Depending on your situation, North Carolina has many different types of divorce. Knowing what you and your spouse seek in your divorce is a great place to start. There are two major types of divorce, contested and uncontested, but they get even more complex than that.
Understanding what type of divorce you’re looking at will help you determine your next steps, whether you need a lawyer, and how expensive and time-consuming it will become.
Uncontested Divorce
An uncontested divorce can be much easier, providing you and your spouse completely agree on dividing the assets and child custody, child support, and alimony. Uncontested means that this agreement exists, and there is no need for further mediation.
North Carolina allows DIY online divorce services, which can make things even faster for your divorce. The filing spouse is responsible for paying court fees, but North Carolina offers a “Petition to proceed as an indigent” (form AOC-G-106) if you can’t afford to pay the fees.
Once you file the papers, a local county sheriff or deputy will notify the other spouse. That spouse then has only 30 days to file a response. Then, the Clerk of Court schedules a hearing, leading to the dissolution of the marriage.
Pros & Cons
Pros
Uncontested divorces save you time and money
Drama free way to end the marriage
These divorces tend to process quicker
You can avoid taking the divorce to trial
Cons
Requires the ability to navigate the divorce process
If domestic violence is involved, a contested divorce is safer
Neither spouse can demand additional spousal support or child support unless the other agrees.
Both spouses give up the right to appeal the terms of the divorce in the future.
If you qualify for an uncontested divorce, using an online divorce service is a great way to save a lot of money. Keep in mind in North Carolina, divorce can cost over $11,000 in fees if you file for divorce with an attorney.
We reviewed, rated, and ranked the best online divorce services available and our #1 choice is 3StepDivorce.
We earn a commission if you make a purchase, at no additional cost to you.
Contested Divorce
A contested divorce means that you and your spouse disagree on aspects of the divorce and separation. This disagreement could be about anything from the division of assets, enforcement of a prenuptial or postnuptial agreement, or child custody.
Contested divorces generally involve an “at-fault” party. At-fault means one spouse has committed marital misconduct such as cheating, emotional or physical abuse of the spouse or children, abandonment, or more.
A divorce is also contested when one spouse does not want to get the divorce. They can refuse to cooperate, ask for unreasonable terms, and more to make the process take longer and cost more money. Ultimately, though, they cannot stop the divorce from happening.
As part of the contested divorce, both spouses provide financial affidavits to show all their assets and properties so the court can divide them. It is a good idea to have an attorney involved in a contested divorce because they are familiar with the legal requirements and can help ensure you don’t miss anything.
Pros & Cons
Pros
You can fight for what you feel you deserve
If you and your spouse can not get along, this will help move through the process with 3rd parties
Cons
You may have to go to trial
These types of divorce tend to take much longer
It's more expensive than uncontested or simplified divorces
Typically more stressful
Other Types of Divorce in North Carolina
At-Fault and No-Fault Divorce
North Carolina does not require you to prove fault for divorce and is considered a no-fault divorce state. No-fault means that a couple can decide that they are no longer content being married and wish to dissolve the marriage but not blame either spouse.
However, North Carolina does allow at-fault complaints, which is vital in protecting yourself from loss of assets if your spouse is at fault. Depending on the nature of the fault, it can affect child support, asset division, spousal maintenance (alimony), or even child custody.
Though the concept of an at-fault divorce is clarified more thoroughly as you consider filing a divorce from bed and board, North Carolina law is a no-fault state.
Absolute Divorce
Most states simply refer to this as “divorce.” It is the complete dissolution of a marriage. However, North Carolina makes this distinction because of the “divorce from bed and board” option available to victims of marital misconduct.
You and your spouse must have been separated, not living together, for 12 months to file for absolute divorce. After those 12 months, one spouse can file for divorce.
During this time, you can create a separation agreement if you want to, but it is not necessary. A separation agreement is a contract between spouses who plan to separate and intend to divorce. This contract allows you to specify who takes on what responsibilities during the separation.
Some of the items in the dispute or that might need to be covered in a separation agreement include:
Who pays which bills
Who takes the marital home
Where the children live
Child support and custody foundations
Preliminary division of assets
The other option for absolute divorce is incurable insanity. If you file for divorce based on the grounds that your spouse has incurable insanity, you must be legally separated for three years and able to prove to the court that your spouse’s mental health concern is legitimate.
Divorce from Bed and Board
Divorce from bed and board is based on marital misconduct and is the only way to claim fault in your divorce. It is not a complete divorce but allows for the immediate cessation of joint property status.
If you believe your spouse has committed misconduct, once you divorce from bed and board, any new assets you obtain from that point forward are considered individual assets.
You are still legally married, despite being called a divorce from bed and board. This is a way to protect your assets and remove the spouse from your home. The effective date is immediate upon filing and is the first step in obtaining an absolute divorce.
This step in the divorce process does not require you to be separated for 12 months before filing as is required for absolute divorce. However, you still have to wait to file for an absolute divorce.
Divorce from bed and board requires a 12-month separation for absolute divorce and only provides financial protection. To file this, you must prove one of six types of misconduct:
Your spouse abandoned the family.
Your spouse kicked you out of your marital home for no good reason.
Your spouse subjected you to cruel treatment (such as domestic violence) that caused harm or endangered your life.
Your spouse mistreated you to the point your life became unbearable.
Your spouse abused alcohol or drugs, causing your life to become unbearable.
Your spouse committed adultery.
Collaborative Divorce
A collaborative divorce is similar to an uncontested divorce, except the intent is for the couple never to see the inside of a courtroom.
Each spouse hires a divorce attorney to help mediate the agreement, though the attorney cannot represent them in court should the divorce become contested.
Specialists and advisers discuss finances, child custody, mental health, and more to help each spouse work through the divorce. The key to a collaborative divorce is open communication and sharing all information so the agreement can be mutually beneficial.
The collaborative divorce attorneys you hire are excluded from any court proceedings that may occur if the collaborative divorce is unsuccessful because of the nature of negotiations and the open sharing of information.
Key Takeaways
No matter what type of divorce you seek in North Carolina, a 12-month separation is required before you can file. North Carolina recognizes no-fault divorce, so you don’t need to prove any reason for the divorce, though you certainly can if marital misconduct is involved.
Residency Requirements in North Carolina
To obtain a divorce in North Carolina, one spouse must be a resident for six months. That six-month period takes place within the 12-month separation from one another. Generally, the filing spouse must be the resident and be able to prove they’ve lived in North Carolina for at least six months.
Therefore, if you separate from your spouse and move to North Carolina six months later, you can file for divorce in another six months, once that 12-month separation is met.
If you move to North Carolina after being separated for 11 months, you’d still have to wait until you’d lived there for six months before you could file for divorce. It’s often best to avoid moving to a new state when you plan to divorce your spouse because of the residency requirements.
If a move is unavoidable, look up the laws beforehand so that you can find an attorney well-versed in North Carolina divorce laws.
What if One Spouse Lives Out-of-State?
Divorce can be granted with one spouse residing in another state or stationed at a military base elsewhere in the country or overseas, so long as the couple has not lived together for 12 months.
All that matters is that the filing spouse meets the residency requirement.
What if I Can’t Find My Spouse?
Sometimes one spouse leaves the marital home, and you don’t know where they went. Maybe they moved across town; perhaps they left the state completely. Either way, they have a right to be notified of your intent to file a suit.
When this happens, you can hire an investigator to track them down, or you can publish your intent to divorce in the local newspapers. As long as you remain a resident of North Carolina for those six months within the 12 month separation period, you can still file for divorce.
If your spouse does not respond to the summons, the judge will grant your divorce by default.
Key Takeaways
One spouse must reside in North Carolina for six months before filing for divorce. The couple must live in separate homes for 12 months before filing for divorce.
Grounds for Divorce in North Carolina
North Carolina recognizes “no-fault” grounds for divorce. While there is another option, divorce from bed and board, you still must be separated for 12 months before filing for divorce.
Ultimately, North Carolina is considered a “no-fault” divorce state, which makes it easier to obtain a divorce.
No-Fault Divorce
There is no requirement for grounds in a no-fault divorce, the only proof each party has lived separately from the other for a minimum of 12 months. No-fault divorces don’t need any reason listed.
A divorce on reasons of incurable insanity falls into this category, as well, and requires that your spouse have the mental condition leading to you living separate and apart for three years. Reaching this determination as grounds for divorce is complex and time-consuming.
Divorce from Bed and Board
In North Carolina, you cannot file an “at-fault” divorce. However, you can file a divorce from bed and board if you are the wronged party. This option allows protection of your assets and property immediately upon filing but still requires 12 months separation before you can file for an Absolute Divorce.
If you decide to file for a divorce from bed and board, the reasons allowed include:
Spousal abandonment
Your spouse kicked you out with no reason
Cruel treatment or abuse that caused harm or threatened your life
Poor treatment, making your life unbearable
Drug or alcohol use of your spouse, making your life unbearable
Adultery
Key Takeaways
You can file for divorce in North Carolina with no reason, or a specific list of acceptable reasons, as long as you and your spouse have lived separate and apart for at least 12 months.
Using a North Carolina Divorce Attorney
Choosing the right attorney is an essential part of your divorce process. Knowing whether you need one or how to hire the best one can be tricky. There are advantages in their expertise, and if your divorce is at all contentious or complicated, hiring an attorney might be your best move.
If you can’t afford an attorney, there are less-expensive options such as filing online with a DIY Divorce service. The more assets you have, and the younger your children, the more complex the process becomes, though.
It is essential to do everything right, so you get what you ask for in the divorce. Attorneys have years of training and experience in family law, which is incredibly complex. Choosing whether to use an attorney or attempt a divorce on your own is almost as complex as the laws themselves.
What Makes a Good Divorce Attorney?
The best attorney isn’t always the oldest and most experienced, though that can be important. Finding someone who is a good listener, works hard, has the knowledge and support to process your divorce, and is willing to do whatever they need to see your success is essential.
Your divorce attorney holds your future in their hands and has the power to help or hurt your case, depending on their skill level, experience, and dedication to your lawsuit.
But skill and experience aren’t the only qualities they need. As you seek out the right lawyer for you, consider the following:
Honesty
To have the best possible outcome from your divorce, you need an attorney who will be honest with you at every step of the process. If you talk to a lawyer who makes it seem like you can come out of the divorce with everything, or their promises seem too good to be true, they probably are.
Be sure your attorney is willing to tell you the truth no matter what. If your requests are unreasonable, or they don’t believe you have the chance to win full custody or full ownership of your business, etc., they need to be willing to tell you that right away.
As with any aspect of life, honesty is the best policy, and having a lawyer who is honest at all times is the best for all parties involved.
Professionalism
Professionalism looks like a lot of different things. The way they dress. How punctual they are. How the attorney communicates. Every interaction they have with someone else reflects their professionalism and, in turn, reflects on you as a plaintiff.
There are times when your attorney will need to speak in a courtroom, and they need to present themselves as though they’re the most knowledgeable person in the room without being arrogant or snide.
How your attorney shows up reflects on you and your case. More than that, though, you don’t want to spend good money on someone unreliable or unprofessional.
Availability
Most attorneys balance multiple clients at a time. That’s perfectly acceptable because your case might have a day or two here and there that requires their full attention, but mostly it is a lot of waiting around for the court to respond or your spouse’s attorney to send documents.
In between this, they work for other clients. Having your attorney available to you within a reasonable amount of time is important, though. You need to decide what you see as “reasonable.” If you want a same-day response time, that might be difficult to get.
Usually, an attorney who can respond within 24 hours during the workweek or by the end of the next business day is great. Keep in mind that there will always be the possibility of extenuating circumstances that delay a response.
If the attorney is in court, hearings, or mediation with other clients, it may take them a bit longer to get back to you. Attorneys have personal lives, too, so you can always ask if they plan to take any major vacations during the time your divorce will be in-process.
Find out what their process is for times like that. Do they have a secretary or legal assistant return calls for them? Do they prefer to communicate via email on these busier days? Whatever the process is, be sure it's something you understand from the beginning of your attorney-client relationship.
Confidence and Experience
While a newly barred attorney might be a bit scary to hire, they can be an asset to your case. The key, though, is a combination of confidence and experience. If your attorney can stand up in the courtroom and appear that they have complete confidence in their abilities, that’s a great sign.
Knowing their experience and access to resources is important as well. A new attorney is better if they’re in a firm with highly experienced attorneys for support. Using this support system as they encounter unique situations in your case will help them become a better lawyer and ensure that you’re getting the best representation.
Attorneys with many years of experience and expertise tend to be more expensive, but they also have a better chance of successfully assisting your case. Even better, still, for their knowledge base is if they’ve been included as a guest lecturer or an instructor for seminars.
Whatever experience level you’re comfortable with is okay; there is no right or wrong answer. Just be certain you clearly understand who you’re hiring and what to expect from them.
Good Communication Skills
Writing and speaking are two essential duties of any attorney, and being able to do so clearly, strongly, and effectively is important. Your attorney will spend a lot of time listening to you and writing down your needs, wants, and wishes for your divorce outcome.
They’ll have to communicate those concerns to your spouse’s attorney in a way that is clear and concise, just as they’ll have to listen to the concerns your spouse’s attorney brings to you.
They are also responsible for correctly filling out paperwork and communicating to the court directly regarding scheduling, timing, hearings, and more. If they cannot communicate well with the court, that can cause unnecessary delays or even completely derail your claim.
No matter what form of communication they prefer, your attorney will need to be clear, concise, confident, and articulate in every interaction. Choose someone who you can tell is able to do this, so there is no confusion in the process.
Research Skills
If any aspect of your divorce settlement hinges on proof of fault, your attorney will need to be able to help you sift through the evidence and determine how to show this proof to the court.
Your attorney will need to research past cases for precedent, consider how each detail impacts the divorce, and how to use the information to your benefit. They also need to understand the events and documentation from your marriage and how the law applies to it.
Organizing the information in a way that’s clear and understandable is critical. They’ll need to determine what is relevant information and what is unnecessary, and you want them to be able to do this relatively quickly.
Dedication
Divorce is a long process. You want to find an attorney who is in it for the long haul. If your case is uncontested and straightforward, it will be simple enough for them, but if there’s contention, it could take many months from start to finish. Sometimes, it can even take more than a year.
You want your attorney to be certain they aren’t planning to retire or relocate within the next year or that they work in a firm with other attorneys who could pick up your case if something changes.
Things change suddenly and unavoidably sometimes, but a reasonable attorney will have an idea of any planned changes well in advance and should communicate this to you right away.
How to Find a Good Divorce Attorney
Finding an attorney seems like it is fairly simple. There are many law firms listed in your phone book or an internet search. Lawyers are a dime a dozen, right? But how do you find the right one for you?
If you’ve had a friend or family member get a divorce in your area, start by asking for their recommendations. They’ll each know of at least two attorneys they can recommend as decent and professional, or ones to avoid.
Read their reviews online. While you should consider online reviews with a bit of prejudice, it is good to see the trend for each attorney. If they have mostly good reviews, they’re probably good. If they have mostly bad reviews, it might be a good idea to steer clear.
You can also check the North Carolina Bar Association referral website. They offer online referrals for free or a $50 30-minute consultation by phone. This website is an excellent option because the lawyers are in good standing with the NCBA and joined the Lawyer Referral Service.
It is a good idea to interview several attorneys before choosing the right one to represent you. Use good judgment and trust your impression of how an attorney-client relationship would look with each one. Select the attorney who is the best fit with your needs and budget.
Interview Questions for Divorce Attorneys
You have the right and responsibility to ensure you hire an attorney who makes you feel confident in your divorce proceedings. The first step is knowing what to ask and what kind of answers to expect when you interview your attorney.
In your initial consultation, you may not have time to ask all of these questions, so plan out which ones are most important to you. During the initial consultation, the attorney will also have many questions for you that help them determine if they are the right fit for your needs.
What areas of law do you practice?
The answer should include experience with divorce and family law, but it is best if this is their specialty. Law is such a broad spectrum that no one attorney can specialize in every area.
If they don’t specialize in divorce but have experience with it, ask what the specialties are within their firm and if there is someone available to help them with your case if things become complicated.
Are you licensed in my area?
While graduating from law school offers someone a Juris Doctorate, it doesn’t automatically qualify them to practice law. Similarly, passing the bar exam in one state does not automatically qualify them to practice in any other state.
Your lawyer must be licensed in North Carolina, and it is helpful if they are familiar with the specific court where you plan to file.
What is your process to resolve divorces?
Is the attorney aggressive, ready to run into battle and fight for you to get everything whether you want it all or not? Do they plan to try to settle the case outside the courtroom, perhaps asking you to give up things you wanted to gain in the divorce?
Whatever approach they take needs to align with your vision of how you want the divorce to proceed. You need to be comfortable with the attorney’s process and plan because it directly affects your life.
Do you have specific accreditations?
Sometimes an attorney can be accredited by another institution, such as the American Academy of Matrimonial Lawyers (AAML). The AAML is not a necessary qualification but can help ensure that this lawyer has proven they can handle your divorce.
The more accreditations and endorsements, the more faith you can have that this attorney has the skills you’re looking for and clearly understands the law.
How much is your retainer, and what are your hourly fees?
Almost every attorney asks for a retainer. A retainer is a deposit for your case and is typically estimated to be the cost of the divorce, assuming that it is a simple proceeding. Once you pay the retainer, the attorney begins to work and bills against the retainer.
Knowing their hourly rate tells you how much time they expect to spend on your divorce. For example, if the retainer is $5,000 and the hourly rate is $250, they aren’t expecting to spend more than 20 hours or so on your divorce.
Keep in mind the hourly rate doesn’t mean they’ll spend 20 hours on it and be finished this week. It means that preparing documents, making phone calls, and filing the paperwork will add up to around 20 hours.
Because of the time it takes for responses from the other party’s attorney and the court, these 20 hours can be spread over many months. It is not unreasonable for a divorce to take longer, at which point your attorney will tell you how they charge.
What is your hourly rate for staff?
Your attorney won’t do all the work themselves. They will use paralegals, legal assistants, and secretaries to complete a lot of the leg-work for discovery and filing. As you consider the breakdown for their staff’s hourly rate, that comes from your retainer as well.
Professional staff use is a good thing because it means your cost will cover more hours if they’re using aides and paralegals. The typical rate for these staff hours is much lower than for the attorney.
How much time will you spend on my case, and how much time will your staff be involved?
It is reasonable to ask who will be spending the most time on your case. While an attorney likely has several cases at a time, they need help from their staff. Highly trained staff are excellent at collecting information and organizing it into easy-to-understand information for your attorney.
You want to be sure, though, that they’re not passing all of it over to their staff and that they’ll be sufficiently informed before reaching out to your spouse’s attorney or going into the courtroom.
How much do you expect my divorce to cost?
This cost will be an estimate, similar in amount to the retainer they request. However, a good attorney will tell you that they can’t provide an exact cost because there are things they cannot predict.
For example, if your spouse refuses to cooperate or the divorce is contentious, the attorney may need many more hours than an uncontested divorce requires. An estimate is good, but a flat rate might be a red flag that they will push through quickly and might miss things.
What should I expect from child support and alimony?
While attorneys can’t guarantee anything, they can tell you what they’ve experienced in similar situations. They understand the courts and the typical expectation for couples with similar circumstances. They should be able to give you a loose estimate of how things could go.
Ask if they believe you need to expect a guardian ad litem to be assigned your case. If child custody agreements are contentious, the court will want a separate person to advocate for the best interests of any child/ren involved.
How do you communicate with clients?
If you prefer to communicate by telephone, but your attorney prefers email, there might be some disconnect between you, affecting your case. Emails are generally less expensive because they take less time, but phone calls are more personal and allow for immediate feedback.
Many attorneys prefer to communicate via email because they can provide a written answer, which you can then refer back to later if you forget. A phone call might mean you forget some of the details and have to ask again later, costing more.
Whatever happens, you need to have an attorney with whom you feel confident about communication and their dedication to your case. It’s also good to ask their response time – typically within 24 hours or if it takes much longer.
Is the initial consultation free?
Many attorneys offer free initial consultations – some an hour, some 30 minutes. Ask this question when you schedule your consultation, though, because it is not required that they offer a free consultation, and you need to know this before you get to the meeting.
While you’re interviewing attorneys, it is acceptable only to interview those with a free initial consultation and then interview ones who charge if you cannot find one you like. A free consultation is not an indicator of their value as an attorney. It just clarifies your first steps.
Is the meeting confidential?
Every meeting with your attorney is confidential, even if it is only an initial consultation. The information you share with them is considered privileged or confidential from the moment you step into their office. They cannot share it with anyone.
Confidentiality is essential to understand because as you choose your attorney, each one you interview becomes unable to represent your spouse due to knowledge of privileged information. Meeting with both parties, regardless of hiring, is a conflict of interest.
This privilege applies if your spouse has spoken to them first, they cannot represent you, even if they are not representing your spouse.
When you call to schedule the meeting, they should ask who your spouse is so they can verify that the attorney has not already met with your spouse, even in a preliminary manner. Everything you say, though, is still confidential even if you decide not to hire them.
Pros of Using an Attorney
Using an attorney can seem like an expensive or unnecessary step in a divorce, especially if your divorce is uncontested or collaborative. However, there are still many benefits to hiring an attorney to represent you.
Experience: a licensed attorney will have at least been inside a courtroom, even if they’re young and newly licensed. They’ve received training to read and interpret the law.
Professionalism: an attorney presents your case in a way that’s professional, clear, strong, and unbiased, making it more clear to a judge what the facts are without emotional attachment.
Stress: knowing how to file, when to file, cross all t’s, and dot all i’s is overwhelming. A missed deadline can cost you everything in a divorce, so hiring an attorney reduces that stress. Let them worry for you.
Objectivity: your attorney has seen some things. They’ve seen how divorce affects a family, how to go about asking for what you want and getting it, and so much more. They also know how to do this from a perspective of objectivity. They know the law, they know what’s allowed, and they know what’s reasonable. They have no emotional involvement in your case, so they’ll make judicious recommendations.
Cons of Using an Attorney
Not everyone needs an attorney to file for divorce. There are reasons to forego legal representation.
Drama: if you thought you could have an uncontested or amicable divorce, hiring an attorney may look hostile. Your spouse might take this as a sign that you’re not going to honor an agreement, or you might make things worse.
Cost: hiring an attorney is expensive. If you don’t have a lot of money to begin with, it might not make sense to spend it on legal assistance, especially if your divorce is uncontested, amicable, or even collaborative.
Key Takeaways
It is important to do your research before choosing an attorney to represent you. Know your preferences, budget, and goals before setting any appointments. Always ask if the initial consultation is free before scheduling.
Filing for Divorce in North Carolina
Once you’ve decided you no longer want to be married, you must formally file for divorce. In North Carolina, there’s a divorce packet to walk you through each step outlined below, but only if you do not seek alimony or spousal support or need property or debts divided.
If you have these needs, you should see a lawyer.
Pro Tip: The information below is perfect for you to get an overview of the divorce filing process and also use as a guide if you will be filing for divorce on your own. However, if you are using an attorney, their team will typically be taking care of these steps as part of their proper representation of you as a client.
Preparing Your Divorce Forms
Have all of your financial information, assets, debts, etc., prepared and ensure that it is as thorough as possible. Be sure to fill out each form entirely. Any missed detail could cause the court to reject the form, and you’d need to refile.
If you forget to add something, it may be impossible to add later. Forgetting pertinent information is one reason it is advisable to hire an attorney. Their experience means they’re less likely to miss a detail.
To begin your case for Absolute Divorce, you need:
Complaint for Absolute Divorce – This form is self-guided, and you should fill out every question. Have it notarized when you sign it and make two extra copies.
Domestic Civil Action Cover Sheet (AOC-CV-750) – This form determines if an attorney represents either party. Be sure you fill it out completely. Make two copies of the signed and dated form.
Civil Summons (AOC-CV-100) – This form notifies your spouse (defendant) that you’ve filed a lawsuit against them. Divorce is a civil lawsuit. Fill in your information and then make three copies on YELLOW paper. If you do not have yellow paper, be sure to mark COPY on the three copies.
Servicemembers Civil Relief Act Affidavit (AOC-G-250) – This form helps the judge know if your spouse is active service military and protected from civil lawsuits. The form must be signed in front of a Notary Public. Make two copies.
Petition to Proceed as an Indigent. (Optional form) – This form is optional and would be used to show you cannot afford the filing fees for your divorce.
If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.
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Filing Your Divorce Forms
Bring the form to the Clerk of Court’s office. You’ll file there. You’ll bring all of the copies you made of each form with you. The filing fee is $225.00. If you want to return to your maiden name, there is an additional $10.00 fee.
If you cannot afford the fees, be sure you’ve filled out the Petition to Proceed as an Indigent.
The Clerk will assign a file number and put your case in the public records. You’ll want to get all copies file-stamped by the Clerk. The court keeps one file, you get one, and the third will serve the “defendant,” your spouse.
Serving Your Spouse
In North Carolina, you cannot serve your spouse the lawsuit yourself. It must be done by either:
Sheriff – this costs $30.00 and sometimes can be left with the Clerk’s office at the courthouse for them to pass on to the Sheriff. The Sheriff delivers the Summons and Complaint to your spouse and makes a note on the original summons that the papers have been served.
Certified Mail – Return Receipt Requested – you can send the papers via certified mail with a return receipt. When you receive the “green card” from the delivery, you submit that to the court with an Affidavit of Service, which you can get in the divorce packet and have it notarized.
Acceptance of Service – if your spouse knows the service is coming and plans to cooperate with the divorce, you can mail the papers to them along with an Acceptance of Service form for them to sign in front of a Notary Public, and then they file it with the Clerk of Court.
Publication – if you don’t know where to find your spouse, you can publish it in a newspaper. This is time-consuming and expensive, so if you don’t know where your spouse resides, consult with an attorney for assistance.
Financial Disclosures
When you go to divide assets and debts, be certain everything is included. Making sure everything is included ensures honesty, transparency, and quick resolution. Hiding assets can delay the divorce and even make things harder for you.
If you do not wish to have debts and assets divided, that is okay, but you still need the information recorded. You must be honest and upfront about all of your assets and debts in order for the court to determine the proper division and responsibility.
Key Takeaways
Filing for divorce in North Carolina can be relatively easy, but be sure you’ve properly filled out all forms and paid for the filing fees.
Online Divorce in North Carolina
If you plan to skip the attorney and handle your divorce yourself, you can file online. The first option is the North Carolina Divorce Packet from the Clerk of Courts website, where you have all forms available with clear instructions on how to file.
Other websites offer services to help you fill out all of your divorce paperwork. You can then print them and deliver them to your Clerk of Court office and file them.
The benefit to online divorce is there is no cost except for the usual filing fees. You do not need to hire an attorney and can proceed at your own pace.
How to Qualify for an Online Divorce in North Carolina
As with any divorce in North Carolina, you must be a resident for at least six months and have lived separately from your spouse for at least 12 months. Once you reach those requirements, you can proceed with your online divorce.
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Do You Still Need to Go to Court?
Your final divorce judgment is issued by a judge after a hearing. You must attend this hearing. As long as it is uncontested and all paperwork is in order, this is a brief hearing.
Papers must be filed in person, too, so you’ll have to go to court at least twice. Once to file, and once for the final hearing.
How Long Does It Take To Get a Divorce in North Carolina
The minimum divorce time a divorce in North Carolina takes is from 45-90 days, provided all paperwork is in order, and there is no property division or spousal support to dispute. Keep in mind, the minimum divorce time starts after the 12 month waiting period of living separate and apart.
A contested divorce can take up to a year as both parties negotiate the division of assets and alimony. Some of the things to consider include:
Debts
Investments
Bank accounts/liquid assets
Property
Businesses
Spousal support
The other factor to consider is whether one spouse is in the military. There are federally protected rights for service members that affect the time and process for serving and completing a divorce. For more information on this, seek a licensed attorney.
Key Takeaways
The amount of time your divorce will take is individual and depends on many factors, including cooperation from your spouse, agreement on assets, and military status.
Divorce Costs in North Carolina
The cost of divorce in North Carolina depends on the amount of work needed. If your divorce is simple, you can file yourself, and the cost will be less than $300. If you need to hire an attorney, though, the price increases rapidly.
Court Fees
Standard filing fees for divorce in North Carolina include:
$225 for filing all divorce paperwork
$10 for a claim of Resumption of Maiden Name
Attorney Fees
The typical hourly fee for a divorce attorney is between $230-$280 but they could be more. The amount of work they do determines the overall price. Each attorney sets their fees, though, so this is an important question to ask as you choose your representation.
Litigation Costs
The average fees for a divorce in North Carolina run up to $9,700-$11,700. It can be far lower or higher, though. Factors that affect the cost of your divorce include:
Contentiousness
Amount of assets
Business involvement
Mediation
Child support and custody
Involvement of specialists such as investigators and guardian ad litem
Mediation (Reduce Costs)
The cost for a mediator to help you and your spouse resolve disagreements within your divorce settlement can range anywhere from $150-$250 per hour. This cost is split between the two parties, making it significantly less expensive than an attorney.
Mediation can also benefit your divorce process even if you later determine you need an attorney because a mediator can manage a lot of the disputes at a lesser rate. They can then share that information with your attorneys.
Online Divorce Service
Using the North Carolina Divorce Packet, there are no extra fees for filing. Other online divorce companies may charge around $100 to help complete the paperwork. You still need to pay the $300 filing fees with your Clerk of Court.
If you want assistance with preparing your divorce forms appropriately and instructions on how to file them correctly, using an online divorce service is a great idea to save a lot of money and hassle.
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Key Takeaways
The average cost of a divorce in North Carolina depends on many factors. For the best estimate of what your divorce will cost, consult an attorney.
Custody Considerations in North Carolina
As a judge determines custody for your minor children in your divorce, they look at many different components. If the parents can reach an agreement, the court only needs to approve the custody and visitation agreement.
However, when parents cannot agree, the issue becomes contentious and difficult. North Carolina has state statutes that govern custody proceedings. These are expressed in N.C. Gen. Stat. § 50-13.01 and establish the policies a judge must follow.
The policy encourages parents to reach an agreement without litigation due to the mental well-being of the children involved. It also sets the expectation that parenthood is a substantial, continuous responsibility and reminds parents that the decision is not to be entered into lightly.
Further, the policy encourages parents to work together to balance parenting duties, encouraging both parents to retain a relationship with the child as long as it is in the child’s best interest.
The judge has discretion in the determination but must consider all relevant factors including, but not limited to:
Domestic violence between parents
The child’s safety
The safety of either parent from the other parent
The child’s age
Specific needs of the child
Each parent’s ability to provide for the child
Parent’s home environment
Each parent’s caretaking ability
The time each parent has available to spend with the child
The child’s relationship with siblings and each parent
A judge might consider testimony from other witnesses, including mediators, therapists, and other specialists. They may appoint a guardian ad litem to represent the children’s best interests.
If a guardian ad litem is assigned, they will provide information to the judge on behalf of your children. This person is a licensed family law attorney who has extra training for this position. They have experience in considering what is in the kids’ best interest, regardless of parental input.
A guardian ad litem’s involvement can make the case take longer as they process all of the information about each parent, the living situation, the child/ren’s education and safety, and more. They do not operate for speed or efficiency but to ensure the best decision for the child.
The North Carolina appellate courts rarely overturn a court-ordered custody decision. They assume that the judge had all relevant information and determined what was best for the child/ren involved.
Key Takeaways
While it is best for both parents to reach an agreement related to child custody, sometimes the courts must get involved. When that happens, a judge will consider every relevant factor and must decide based on the child’s best interests, not the parents.
Child Support Considerations in North Carolina
North Carolina created their Child Support Guidelines in 2015 and apply to families with income below $300,000 per year. Several factors are considered when determining if and how much child support is owed and to which parent. These include:
How many overnights your child spends with each parent
Monthly gross income of both parents
Pre-existing child support
Monthly work-related child care costs
Health insurance premiums
Other extraordinary expenses (such as private school or pertaining to a disability)
In North Carolina, the court does not consider other monthly expenses unrelated to the child, including rent or mortgage, car payments, and utilities. They consider reasonable needs for the child, including health, education, child care, health insurance, and maintenance.
As the court considers the ability to pay, they look at the Schedule of Basic Support Obligations, which took effect January 1, 2019. This table establishes a minimum of $50 a month in child support for the lowest income bracket with a combined monthly AGI between $0 and $1150 per month.
The table expands to six children and a combined monthly AGI of $30,000, putting the most expensive child support payments at nearly $6000 a month.
The more money you make, the higher your child support obligation will be. If your spouse earns significantly less than you, but they have custody, you’ll pay them. If you have custody and your spouse earns less, they may not owe much in support at all.
Key Takeaways
Child support is determined based on the amount of time each parent spends with the child/ren and how much money the parents each contribute to the child’s welfare in other ways. Due to the complexity, it is a good idea to have an attorney assist in this process.
Alimony Considerations in North Carolina
North Carolina allows alimony, or spousal support, to be paid during a divorce. There are two different types of alimony, paid as one lump sum or ongoing. Alimony considerations look at many different factors and could be temporary or ongoing.
Post-Separation Support
If a court determines that post-separation support is appropriate, the payments only last as long as the divorce takes to complete. They consider each spouse’s income, earning ability, need, and the standard of living they were used to while living together.
These factors determine whether spousal support is necessary. The judge may order no spousal support if both spouses are relatively equally matched in income and earning ability.
Ongoing Alimony
If the court determines that one spouse should receive permanent, ongoing alimony, they consider many factors.
Each spouse’s earning capacity.
Each spouse’s age.
The mental, physical, and emotional condition of each spouse.
Marital misconduct from either spouse.
Sources of both earned and unearned income for each spouse, including investments, earnings, disability, social security, and more.
Whether one spouse contributed to the education of another.
How long you were married.
How child support will affect the spouse.
Expected standard of living while married.
The amount of time it would take for each spouse to acquire training or education sufficient to cover reasonable economic needs.
Property each spouse owns (both during and before the marriage).
What each spouse needs to live reasonably.
Other factors the court determines relevant.
If a spouse would otherwise qualify for alimony but committed adultery, they are denied alimony regardless of the other factors. Conversely, if you had not had to pay alimony but committed adultery, the court could order alimony based on that misconduct.
Unlike child support, there is no table to guide judges in assigning alimony. A judge can consider all factors and award alimony based on what they believe is just and fair.
Key Takeaways
Alimony isn’t guaranteed in North Carolina, but if there was marital misconduct such as adultery, that closely affects alimony awards. The judge will consider many factors as they determine what is appropriate.
Division of Assets
North Carolina does not recognize community property, which means that when it comes to the division of assets, the judge will divide your property in an equitable way to both partners.
The initial assumption is that an equitable split would also be equal between the two parties. However, that is not always the case. The court will look at each spouse’s current and future needs alongside other factors to reach a just and equitable split, even if that doesn’t mean 50/50.
North Carolina recognizes three different types of property: marital, divisible, and separate.
Marital Property
According to N.C. Gen. Stat. § 50-20 (b)(1), marital property relates to anything obtained by either or both spouses while you were married. Marital property applies to pensions, investments, properties, military pensions, retirement, and more.
If you earned or saved it while you were married, it is shared property.
Separate Property
Gifts given to a spouse from an outside party and any properties owned before the marriage was entered are considered separate property. Whatever you brought into the marriage or anything given to you as an individual (except by your spouse) is considered separate.
Divisible Property
Anything that is considered real and personal property earned or obtained during the marriage and prior to separation is divisible property. Divisible property is more complex because it also considers income and dividends earned after the separation.
As the court determines how to divide each asset, they consider several other factors also, including, but not limited to:
Income, property, and liabilities of each spouse.
Support obligations from previous marriages.
How long you were married.
The age of each spouse.
Needs of a custodial parent.
Expectations of retirement, dividends, etc., that are not considered marital property.
Contributions from one spouse to another for education or career advancement.
All marital property and divisible properties.
Tax consequences to either party.
Whether either party has actively sought to increase, decrease, or otherwise affect marital or divisible property during the separation period.
If you can divide assets on your own, that is ideal. But sometimes, the court needs to step in and help. Some of the specific assets the court looks at are:
Real Estate
The courts will consider what kinds of property you own, what they are worth, and marital, separate, or divisible properties. Separate property remains with the spouse who originally owned it, while marital or divisible property may be split or sold with the profits divided equitably.
Dividing real estate assets can delay the divorce proceedings because of the nature of selling the assets. In some cases, the court may determine how to manage the property sale and determine the divorce as finalized while a sale is pending.
401k, IRA, Investments
As with real estate, the court will consider the value of each asset, what type of property it is, and whether either partner modified anything during the separation period. The judge will then divide this equitably and whether it is marital, separate, or divisible.
Businesses
Businesses are complex, even in the best situations. If you owned the business before your marriage, it is your separate property and remains after the divorce. If you have a prenuptial or postnuptial agreement that discusses the business or any other asset, the judge will also consider that in the determination.
If you started your business during the marriage, the judge looks at the structure of the business, assets acquired during the marriage, and each partner’s role in the business. From there, several outcomes may happen.
One spouse maintains ownership of the business by purchasing the other spouse’s half.
Partners will sell the business, and the profit split between each spouse.
Both partners can continue working together with the business after the divorce is final.
Whatever you decide, the courts will help determine what is equitable in the division.
Other Assets
As with all other types of assets, the judge will consider whether they are marital, separate, or divisible.
Key Takeaways
If you are unable to determine a fair and agreeable division of assets between you and your spouse, the judge will consider how to best divide things in a way that’s equitable but not necessarily equal. Separate property remains with the spouse who owned it before the marriage, and everything else is divided fairly.
Common Law Marriage Considerations in North Carolina
North Carolina does not recognize common law marriage. Statute N.C. Gen. Stat. § 51-1 says that a marriage is only created with an ordained minister or magistrate, and the minister or magistrate must declare that the two parties are joined by matrimony.
Common law marriages from other states are recognized in North Carolina as long as it was recognized before the parties moved to North Carolina.
If you have a common law marriage from another state, divorce from that agreement still must be completed as though you had a legally binding North Carolina marriage. You’d still have to meet all requirements for residency, separation, and divorce proceedings.
If you need a divorce from a common law marriage, hiring an attorney is the best idea because the law is even more complex since it relates to laws originating in a different state.
Key Takeaways
There is no legal benefit to a common law divorce from another state, nor is common law marriage recognized in North Carolina. If you need a divorce from a common law marriage, seek legal guidance.
Alternatives To Divorce in North Carolina
Not every separation ends in divorce. Sometimes a couple just needs time apart to re-evaluate their relationship, the living situation, or what they both want from the marriage. This is why North Carolina requires that couples live “separate and apart” for 12 months.
Legal Separation
North Carolina does not recognize a legal separation, despite requiring that couples participate in separation before filing for an absolute divorce. This separation allows couples to experience life completely separate from one another to determine if divorce truly is the goal.
If you’re filing for an absolute (or no-fault) divorce, this 12 month period is not negotiable. You cannot file for divorce within this time period, and your assets remain combined. New financial or asset changes affect both parties equally, and for all intents and purposes, you are legally married still.
You are required, however, to maintain separate residences during these 12 months. You’ll have to prove that you live separately and can use any of the following to do that:
Rent lease or mortgage on separate residences (one in each spouse’s name)
Utilities for separate residences
Bank statements with separate accounts
Voter registration cards with current addresses
Driver’s licenses with current addresses
Military orders with out-of-state assignments
If there is a fault or marital misconduct and you choose to file for a divorce from bed and board, this begins immediately and separates assets. However, this does not change the 12-month separation requirement before you can file for divorce; it simply separates assets during this time.
At the end of the 12-month separation, you must choose to continue your marriage or file for an absolute divorce. Staying separated for longer than 12 months has no legal benefit, though if you are not yet ready to make a decision on your future, it won’t hurt you either.
Legal separation is an excellent trial run for being apart on a more permanent basis. It often allows couples to see their futures clearly, whether together or divorced.
Annulment
Annulment is the act of declaring a marriage null and void, as though it never happened in the first place. North Carolina offers annulment in limited circumstances. The length of time of the marriage is irrelevant, as is whether the relationship has been consummated or not.
North Carolina judges can consider annulment in two specific and limited circumstances: void and voidable marriages.
Void Marriage
A void marriage is only recognized in one circumstance. If one person is already married to someone else, they cannot legally marry another person. Bigamy is illegal in North Carolina. The result of bigamy makes the second marriage void as though it never existed.
The wronged partner can petition for annulment, but it isn’t necessary because the court will already recognize a void or invalid marriage. Only the first marriage is considered valid.
Voidable Marriage
The term voidable marriage applies to a marriage that is otherwise legal and does not involve bigamy. The court can grant an annulment in certain circumstances, including:
Close relatives: spouses who are more closely related than first cousins or are considered double cousins (children born from two siblings from one family marrying two siblings from another family)
Underage spouse: at least one spouse is under the age of 16
Impotence: when one spouse is medically declared impotent and unable to produce children
Lack of mental capacity: if it is determined that one spouse could not enter the contract for marriage due to a lack of will or lack of understanding
False pretenses: when a woman misrepresents a pregnancy
A voidable marriage may not be considered annulled, despite these circumstances. A judge considers all aspects of the relationship, including whether the spouses intend to remain together and if a child has been born to them.
If the courts consider the marriage validated, the couple would then have to file for divorce.
Annulment becomes even more complex, and you should seek guidance from a licensed and experienced family law attorney.
Work It Out Together
A couple who isn’t quite ready to call it over might wish to spend their time working through the issues that led to the discussion of divorce. You can do this within the same household or while living separately, depending on what works best for you.
Many couples experience difficult times that don’t necessarily lead to divorce as the only option—figuring out what you need as individuals and as partners is essential no matter what the end goal becomes. Taking time to work through the issues strengthens your resolve in the long run.
If divorce ends up being necessary, you’ll at least know you tried everything to work it out.
Seek Counseling
Counseling is an excellent way to manage any troubles in a person’s life. When two spouses reach a point in their relationship where communication, honesty, fidelity, or any number of other issues cause strife, counseling could be the answer.
You can attend couples counseling where you both attend the same sessions with the therapist and communicate openly about your needs, your desires, and what you believe is the problem within the relationship. During couples counseling, the therapist listens to both sides.
Couples therapy is designed to help both partners reach an understanding and agreement about the problems in the relationship and how to address them, whether that resolution fixes the marriage or leads to divorce.
Another excellent option is to add individual counseling. Quite often, the problems that arise in a marriage are due to individual concerns and issues as well. Perhaps one partner spends too much money, gambles too much, loses interest in intimacy, or struggles with depression.
Addressing individual concerns alongside marital issues can be an important part of healing and resolving the difficulty in your marriage.
Considering a divorce can really take an emotional toll on even the strongest people.
If you are in need of therapy with both privacy and convenience, we recommend Online-Therapy.com. Their incredible service gives you access to instant professional help, on any device, wherever you are in the world.
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Open Marriage
One option that works for some couples who wish to remain married and want the adventure or intrigue of seeing other people is to adopt an open marriage. Within an open marriage, all legal benefits of marriage exist between the original couple.
Adding in the possibility for other partners can help some couples find greater intimacy together. They develop a better understanding and appreciation for their spouse. While an open marriage can become a long-term option, it can also be a short-term event to bring clarity.
Whatever you choose, be sure that you set ground rules and clearly understand what you expect from an open marriage, so you don’t inadvertently cause more problems down the line.
Parenting Marriage
Sometimes when a couple no longer wishes to be married, a divorce could cause more harm than good for the children. If the couple is amicable and friendly, sometimes they can remain married solely for the children’s sake.
In a parenting marriage, the relationship becomes platonic. The couple resides in the same household, makes all parenting decisions as a team, and focuses on doing what is best for the kids. However, they remain married in name only.
Key Takeaways
Every marriage has struggles, but not every problem must end with divorce. If you’re not ready to take that radical and permanent step, there are other options for you in your marriage.
Whatever you choose, having the best information available helps you make a good decision for you and your partner.
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure.
