For several years, North Carolina has led the nation in both the rates of marriages and the rates of divorces. This demonstrates a trend that is mirrored nationwide of more and more people entering into marriages that will not last. The statistics about divorce rates across the country do not lie: our nation is in the middle of a divorce crisis.
While the statistics for divorces are high, which is concerning, the reality is that many marriages simply were not meant to be. Those couples who find themselves in the situation of needing a divorce should not be ashamed of seeking one, but should be more concerned about how they go about the divorce process.
Divorce lawsuits can be very unpleasant for both sides, and many divorces simply are not reconcilable outside of a court of law. But for those spouses who do still talk and who understand their situation, North Carolina offers an uncontested no-fault absolute divorce.
This article will explain the nature of an uncontested divorce and North Carolina uncontested divorce law. If you still have any questions after reading this article or would like to file for an uncontested divorce, you should consult with an experienced divorce attorney.
Uncontested No-Fault Absolute Divorce in North Carolina, Defined
While an uncontested no-fault absolute divorce may seem like a mouthful, it is a simple concept once it is broken down into its individual parts. In North Carolina, the proper terminology for a divorce is an “absolute divorce”. The word “absolute does not mean anything special or legal, it is simply the exact same concept that other states call “divorce”.
In North Carolina, there are two types of absolute divorces, those with and without fault. A divorce with fault is where one spouse blames the other spouse for the divorce. Think situations like adultery, domestic abuse, or other similar reasons that someone might be considered “at fault”. In a no-fault absolute divorce, neither spouse is trying to prove that the other spouse committed a wrongful act; the only thing that matters is that the marriage has broken down and the parties have lived separately for at least a year.
As to the “uncontested” nature of a divorce, there is not technically any type of divorce called an “uncontested divorce” in North Carolina, but the concept is still useful. Where the divorce proceedings are not contested by either party, the divorce proceedings are generally less expensive and move through the court system more quickly than in a contested divorce case.
Requirements for Seeking a North Carolina Uncontested Divorce
To file for uncontested divorce in North Carolina, the filing spouses must meet certain requirements. Any questions about these requirements can be answered by an experienced North Carolina divorce attorney or family lawyer.
The first requirement is the North Carolina residency requirement. To file for a divorce under North Carolina law, at least one of the spouses must have lived within the state of North Carolina for at least six months.
To qualify for a no-fault divorce, the spouses must also have been living apart for at least a year. While in some cases, a divorce based on fault may be achieved more quickly than a no-fault divorce because of the separation requirement, a no-fault divorce is likely preferable if the spouses have already agreed to divorce. At-fault divorce proceedings generally lead to public embarrassment for both spouses, and in many marriage, it is not possible for either spouse to definitively prove fault.
The final “requirement” of an uncontested divorce is a signed separation agreement. Remember, in North Carolina, there is no such thing as a true “uncontested divorce”. Instead, to simulate the conditions of an uncontested divorce, the spouses must agree on all of the relevant issues before going to court. The best way to accomplish this is to sign a legally binding separation agreement.
On Spousal Support and Separation Agreements
When spouses sit down to discuss the terms of their divorce, it is important for the spouses to sign a legal separation agreement. A separation agreement is NOT a formal divorce. A separation agreement is a contract between spouses that lays out their agreement and terms of their separation. A fully completed separation agreement can serve as the basis for an uncontested divorce, and may also be helpful in filling out the required divorce paperwork.
Under North Carolina law, a judge will rule on any issue that the parties have not already agreed on privately. Because judicial rulings take time and increase court costs, it is normally beneficial for spouses seeking a divorce to come prepared with a private agreement on all of the following issues:
- Division of marital assets, property, and debts;
- Alimony payments (also referred to as spousal support);
- Tax deductions and exemptions;
- Payment of attorneys’ fees (if any); and
If the couple has children born of that marriage:
- Child custody and visitation (this includes deciding which parent the children will live with) and
- Child support (including an agreement on the costs of medical expenses and health insurance).
If the parties to a divorce lawsuit come prepared with all of these issues ironed out, the only thing the court will be required to do is sign off on the divorce. Remember, however, that a separation agreement is merely an agreement between two parties and the court cannot usually alter the agreement later unless the agreement itself allows for such modifications.
Prior to signing any separation agreement (or any contract with your spouse), you should have an experienced attorney review the terms of the contract for you. This is a safety precaution that ensures that the agreement does not accidentally (or intentionally) favor one spouse in an unexpected way.
The Process for Filing an Uncontested Divorce
Spouses must file their North Carolina divorce paperwork in the proper North Carolina District Court. Each North Carolina District Court contains its own Family Court Division, which handles family and divorce matters. Each county in North Carolina has its own district court, and you should file your divorce paperwork in the county in which either you or your spouse resides. Additional information about family courts in North Carolina can be found online.
Once you have determined which family court is the proper court for filing, the general flow of the process is follows:
- This step is optional, but you should begin by consulting a family law attorney who can either answer any questions that you may have, or who can help you file your divorce paperwork properly;
- Discuss the divorce with your spouse and come to an agreement on the terms for the divorce. In North Carolina, you and your spouse should have a complete agreement beforehand, such as a separation agreement;
- Obtain the required divorce paperwork, either online through the North Carolina Court System Website or from the courthouse;
- The filing spouse must deliver the required paperwork to the court for filing, and then must serve the divorce complaint on their spouse in accordance with the rules for service of process (the service requirements and the right to file an answer may be waived by the non-filing spouse).
- Once the non-filing spouse has been served, a hearing date will be set no sooner than 31 days after service;
- At the hearing, if the spouses submit all remaining required paperwork, the court will finalize their divorce.
A sample divorce filing packet compiled by a reputable North Carolina legal aid organization can be found online at LawHelpNC.org.
Note: This article is not legal advice. Please consult a lawyer for your specific situation.