Finding yourself at the beginning of the divorce process can be overwhelming, to say the least. Realizing that your marriage is ending is painful and difficult – even when you know that divorce is the best option. When you find yourself at the beginning of this journey, it can be hard to know where to start, and stressful to worry and wonder about what the future might hold. That’s understandable.
Fortunately, there are a couple of things that can be extremely helpful in this situation. The first is knowing and understanding the basics of divorce law in North Carolina. Learning more about how the process works and what you might expect can be tremendously helpful in providing peace of mind. The second is finding a knowledgeable and experienced attorney you can trust to guide you through the process and help you move forward toward a better chapter ahead. At The Law Office of Dustin McCrary, we’re here to help you do both.
Eligibility for Divorce in North Carolina
In North Carolina, two basic requirements must be satisfied to obtain a divorce:
- Residency: One spouse must be a legal resident of North Carolina, and have lived in the state for at least six months before filing for divorce.
- Separation: The spouses seeking a divorce must have lived separately for at least one year, and at least one of the spouses must have done so with the intention not to resume the marriage. The separation must have been for twelve consecutive calendar months. If the spouses move back in with one another during that time, the twelve-month period will reset.
In addition to meeting these two eligibility requirements, the filing spouse will need to provide a filing fee (usually around $225) and file for divorce with the clerk of court in his or her county of residence.
Grounds for Divorce in North Carolina
North Carolina, like the majority of states, allows no-fault divorce. This essentially means that a couple can obtain a divorce for any reason – or without any specific reason at all. Historically, many states required a “reason” – some sort of marital misconduct on the part of one party, before a divorce would be allowed. That is no longer the case. Now, a couple only has to establish that they meet the eligibility requirements – essentially that they have lived separately for one year, and that they have North Carolina residency.
Although fault is not required for a divorce, it can be relevant in certain circumstances. Often, if certain types of fault exist, a court-ordered separation, known as a “divorce from bed and board” may be allowed before the absolute divorce is finalized. A divorce from bed and board may result in the at-fault party losing certain rights, depending upon the circumstances. Some of the cases in which a court may consider granting a divorce from bed and board include:
- The at-fault spouse has abandoned the family;
- The at-fault spouse has maliciously forced the other spouse out of the home;
- The at-fault spouse has humiliated the other spouse to a point where life is intolerable;
- The at-fault spouse is subjecting the other spouse to treatment that is cruel and endangering;
- The at-fault spouse has substance abuse issues;
- The at-fault spouse has committed adultery.
If any of these circumstances are found to exist, a divorce from bed and board might be granted.
The Basics of the Divorce Process
After meeting the necessary eligibility requirements, a couple can begin the divorce process. Certainly, just as every marriage is unique, every divorce will be slightly different. Regardless, it can still help to be familiar with the basic steps of the divorce process. These include:
- Filing a petition: After the initial eligibility requirements (separation and residency) are met, one spouse can officially “file” for divorce against the other. This basically consists of filing a complaint with the clerk of court in the county of residence. Typically, the complaint sets forth not only the intention to divorce, but also various issues to be addressed during the divorce – matters like child custody, property division, and other important items. Following the filing of the complaint, the other spouse is “served” (either by mail or in person) and is allowed time to file a response. At that point, the case begins to move forward.
- Discovery: The discovery process is the stage of a divorce case where the parties gather and organize their evidence and think through strategies and goals for the important issues they must address. Typically, the attorneys for each party will communicate with one another during this stage, to resolve issues as amicably as possible, and with solutions that work for both parties.
- Mediation: Fortunately for most couples, many divorces are now resolved almost entirely outside of the courtroom. Many people think of divorce and envision two angry spouses battling it out over every issue, as often seen on television legal dramas. Fortunately, this is not the reality for most couples. Often, couples can use out-of-court resolution methods like mediation or collaborative law to find solutions to their issues and reach a settlement that satisfies everyone involved. This is often the ideal scenario, because it typically saves time and money, and reduces stress for all parties. In some cases, however, for any number of reasons, an out-of-court resolution might not be possible. In those situations, the parties will proceed with litigation in a courtroom before a judge.
- Courtroom litigation: If mediation or other methods of out-of-court resolution aren’t ideal for the parties, they will then proceed to argue their case in court. A judge will hear the evidence and argument presented by each side, and will ultimately render a decision after allowing each party to fully present their case.
- Entry of order and final divorce decree: This is the final step of the divorce process. If the parties successfully resolve their issues outside of court, this is generally just a matter of the court reviewing and approving their agreement. At that time, the agreement will become official and final, and the parties will abide by its terms. If a court hears the case, it will enter an order containing all of its findings and directions to the parties, and the parties will follow the terms of the order until and unless it is later modified by the court.
A Look at North Carolina Law on Important Issues
As noted, in the course of a divorce proceeding, any number of issues might arise. Each divorce will be unique, but generally, there are a few important issues that most couples must address during the process. These include:
- Child Custody: For most couples, child custody is one of the most important matters to be addressed during a divorce. Certainly, the law on this subject can be complex and each family will have different circumstances to confront. Typically, however, in North Carolina, courts will seek to resolve custody matters with a focus on making decisions that are in the “best interests” of the children involved. Generally, there are two kinds of custody – legal custody, and physical custody. Physical custody is where the children actually reside – which parent has them, when, and for how long. Legal custody, however, concerns the rights of each parent to participate in important decisions about the child’s life and well-being. Depending upon the circumstances of each family, legal and physical custody can be shared in any number of ways.
- Child Support: In North Carolina, child support is typically calculated using a formula set forth by state law. The judge will review the income of each party, as well as the custody arrangement of the parties, and child support will be calculated in a manner intended to provide for the children and to preserve the standard of living to which they are accustomed as best as possible. Certainly, if the parties choose to address and resolve the issue outside of court, they can agree on an amount and payment schedule that works best for their needs.
- Property Division: Insofar as property division is concerned, North Carolina is an “equitable distribution” state. This essentially means that a court will review the total financial picture, assets, and debts included, and attempt to divide the property in a way that is fair and equitable to both parties, considering all circumstances involved.
- Spousal Support: Also known as alimony, an award of spousal support in North Carolina will be dependent upon one spouse demonstrating financial need, and the other spouse having the ability to pay. In deciding whether or not to award alimony, a judge may consider a variety of factors, including, but not limited to, the length of the marriage, the standard of living enjoyed during the marriage, the assets and income of each spouse, the age and earning potential of each spouse, and any number of other factors. As with child support, the parties can also choose to address and agree upon spousal support outside of the courtroom.
It is important to realize that all of these issues can be resolved by a judge, or by the parties, on their own, outside of a courtroom. For any number of reasons, parties often prefer to resolve their issues together, as this offers maximum freedom and flexibility to find solutions that truly work best for their individual family.
Regardless of whether you ultimately resolve your issues outside of a courtroom or before a judge, it will be essential to have an attorney on your side who knows and understands the law and can help you through the process effectively. At The Law Office of Dustin McCrary, we’re here for you.
THE LAW OFFICE OF DUSTIN MCCRARY – HERE FOR YOU
Without question, divorce law in North Carolina – and all states – can be complex. There is a great deal of information to process and understand, and it’s not a road that you want to walk alone. Divorce can be a painful and difficult journey, and you need a guide who can help you navigate that path every step of the way. At The Law Office of Dustin McCrary, we’re here to help you do exactly that. We understand every aspect of the divorce process in North Carolina. We’re passionate about helping each and every one of our clients through a difficult time and onto a better, and brighter chapter ahead. We would be honored to help you too. Give us a call today. We look forward to speaking with you soon.