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Decree of divorce paperWhen a couple makes the difficult decision to end a marriage, they may decide to seek a divorce. In North Carolina, a divorce—also called an absolute divorce— legally terminates a marriage. One member of a married couple can file for divorce in North Carolina after the couple has lived separately for at least one year. A divorce claim is technically separate from and does not include issues like child custody and support, spousal support and alimony, or equitable distribution of marital assets and liabilities.

The divorce process can seem complicated and time-consuming to someone unfamiliar with it. If you are considering a divorce or have been informed that your spouse wishes to seek a divorce, it is important that you retain a knowledgeable divorce attorney to protect your interests and guide you through the divorce process.

The Raleigh divorce lawyers at Younce, Vtipil, Baznik & Banks have extensive experience helping people in Raleigh and throughout Wake County work through the many issues that arise in separation and divorce. When you are represented by Younce, Vtipil, Baznik & Banks, you will receive care and personal attention. We utilize a state-of-the-art case tracking system to ensure that we provide optimal representation to each of our clients. We also have staff fluent in both English and Spanish to serve the Spanish-speaking members of our community.

If you are considering ending a marriage or are having issues with alimony or child support, contact the Raleigh family lawyers at Younce, Vtipil, Baznik & Banks online or by phone at (877) 941-0886 to schedule an initial consultation with us today.

What Are the Grounds for Divorce in North Carolina?

The state of North Carolina recognizes no-fault divorce. This means that it is possible to obtain a divorce without having to prove that one spouse acted improperly or was to blame for the breakup of a marriage.

You may obtain an absolute divorce if you meet the eligibility requirements, even if your spouse does not agree to end the marriage. The date of the start of the separation can be significant because it may be used to determine the division of assets between the partners.

You cannot obtain a divorce more quickly by proving one partner was at fault.

You also may obtain a divorce in North Carolina on the grounds of incurable insanity if you and your spouse have lived apart for three years because of your spouse’s mental condition and your spouse has been institutionalized or found by a judge to be insane at least three years ago.  You will need to offer testimony from two doctors stating that your spouse’s insanity is not curable.

At the point when you and your spouse separate, you may wish to work out a separation agreement, if you can both agree on the terms. You are not required to have a separation agreement, but it is helpful in assigning responsibility for marital debts, the payment of bills, and formalizing child custody arrangements. This also can be useful in documenting the date of separation. A Raleigh divorce attorney at Younce, Vtipil, Baznik & Banks can help you determine the steps necessary to dissolve your marriage and provide compassionate counsel at every step in the process.

Contact our divorce lawyers in Raleigh today to discuss whether you are eligible to file for divorce under North Carolina’s laws.

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How to File for Divorce in North Carolina

To be eligible to seek a no-fault divorce, you and your spouse must live separately in different homes for at least a year with the intent of permanent separation. One of you must have resided in North Carolina for at least six months before the divorce petition is filed with the clerk of court.

If you move apart for six months, and then reconcile and move back in together, and then separate again, it will restart the clock on establishing the one-year separation.

To file a divorce claim in court, you or your divorce attorney must complete a domestic civil action cover sheet and a civil summons, which are forms provided by the courts, along with a complaint for absolute divorce, which you or your attorney are required to draft yourselves.

Some forms must be signed in front of a notary public. You will need at least two additional copies of these documents (in addition to copies you keep for yourself), one of which will be delivered to your spouse.

These documents are filed with the clerk of court in the county where you live. The court will charge you a fee to file your divorce claim unless you file a petition to sue as an indigent person and the court grants your petition. You will also need to serve these papers to your spouse. The papers must be delivered to your spouse by the local sheriff’s department. You cannot deliver the papers yourself.

Your spouse then has 30 days to file a response to your complaint for divorce, before the matter will be scheduled for a hearing before the court.

If you want such issues as child custody and spousal support resolved in your divorce case, you must assert them prior to the court granting a judgment of divorce, or you will forever lose your right to litigate such claims.

How Are Assets Divided in a Divorce?

North Carolina is an equitable distribution state. This means that, in divorce, a court will divide a couple’s marital assets and liabilities in a manner that is fair, but not necessarily equal. Although an equal distribution may be presumptively equitable, the court may find that, for a particular couple, an equal distribution would be unfair to one spouse.

Couples are free to agree on how to divide their marital assets and liability without intervention from the court, such as through a pre-nuptial agreement, or property settlement agreement.

If the court is called upon to make an equitable distribution, it will first identify all assets and liabilities that qualify as marital property. The court will likely presume that all assets and liabilities acquired during the marriage are marital property, including assets held by only one spouse like pension or retirement account.

The court will exclude from equitable distribution all separate property, which includes assets that you held in your own name or earned before marriage or after separation. It also includes certain property that you may have obtained during the marriage that was intended solely for you, such as an inheritance or family gift. However, if you comingle your separate property with marital property (for example, if you deposit your inheritance in your joint account with your spouse) the court may treat the property as a marital asset.

The court will consider multiple factors to calculate a division of marital property that is fair to both spouses. Some of the factors include:

  • The age and health of the spouses
  • The respective income of the spouses
  • The separate assets and liabilities of the spouses
  • The length of the marriage
  • The liquidity of each marital asset
  • How each spouse contributed to or dissipated each marital asset

Contributions as a homemaker are valued equally against monetary contributions to marital assets. The court may order spouses to split liquid assets while allowing them to take possession of non-liquid assets such as real property or stocks. If one spouse is awarded custody of the couple’s children, the court may award that spouse possession of the marital home.

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Is North Carolina a No-Fault State for Divorce?

North Carolina, like many other states, is considered a “no-fault” state for divorce. That means that couples can get divorced without any finding of fault, so long as they have not been living together as a married couple for at least one year.

A no-fault divorce means that it is not necessary for one or both spouses to try to prove that one spouse was at “fault” for the breakdown of the marriage. It is sufficient that one spouse wishes to get divorced and the parties have been separated for at least one year.

How Is Custody Determined in a Divorce in NC?

When courts in North Carolina are called upon to decide child custody in divorce matters, the overriding concern in determining a custody arrangement is the best interests of the child.

In many cases, a divorcing couple will agree to a parenting plan that sets forth how they plan to raise the children. If a couple can agree to a parenting plan, it demonstrates their willingness to work together to raise their children despite separating from one another. However, when parents cannot come to an agreement on custody, the court will determine an arrangement that is in the children’s best interest, as determined from a number of factors, such as:

  • The child’s own preference, if the child is mature enough to express a reasoned preference
  • The child’s safety, educational needs, religious upbringing, and the parents’ ability to provide for those and other needs
  • The child’s relationship with the parents, siblings, and other family members
  • The nature of the relationship between the parents
  • The parents’ work schedules, availability, distance, financial resources, and parenting skills
  • Any history of domestic violence, child abuse, neglect, or substance abuse by either parent or any person living in the parent’s household
  • The mental and physical health of each parent

Courts typically prefer to grant a joint custody arrangement whenever possible. In joint physical and legal custody, each parent enjoys substantial (though not necessarily equal) parenting time and both parents must agree on childcare decisions such as education, healthcare, and religious or moral upbringing.

Depending on the circumstances, a court may decide to award one parent sole legal or physical custody. The other parent may still be awarded visitation time with the child, which may be supervised or unsupervised.

What Is a Divorce from “Bed and Board”?

People are often confused by this. Despite its name, a divorce from bed and board is a form of court-ordered legal separation rather than an absolute divorce. An individual who obtains a divorce from bed and board in North Carolina is not free to remarry.

Only the spouse who has been mistreated or harmed by the other’s misconduct may petition for a divorce from bed and board. The grounds for a divorce from bed and board include:

  • Abandonment by your spouse
  • Forced expulsion from your marital residence
  • Intolerable humiliation by your spouse
  • Cruel and/or threatening treatment by your spouse
  • Substance abuse by your spouse
  • Adultery

The injured spouse must prove the other spouse committed one of the above forms of misbehavior to qualify for this court-ordered separation.

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Contact a Divorce Attorney in Raleigh Today

If you are considering divorce or have been served divorce papers by your spouse, it is important that you have experienced, skilled legal representation on your side. Contact the Raleigh divorce attorneys at Younce, Vtipil, Baznik & Banks today to schedule a consultation to learn more about your legal rights and options.

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