Even in the very best of circumstances, divorce can be difficult. Moving from one life together, to two lives apart isn’t easy. This is true even when both spouses agree that divorce is for the best and want to work together to resolve their issues in an amicable, cooperative way. It can be far more difficult and complex when matters have to be litigated and decided by a judge. Nevertheless, for any number of reasons, litigating your divorce in a courtroom may ultimately be necessary.
If you find yourself in this situation, it can be helpful to understand how the litigation process works, and what you might generally be able to expect. Certainly, every case will be slightly different, and no two judges are the same – but feeling prepared and knowing the basics of courtroom litigation can go a long way toward providing peace of mind.
Before understanding how the courtroom litigation process works, it can be helpful to understand why some cases end up there. Ideally, all couples would be able to work together cooperatively, with open communication, and a shared focus on resolving issues in a way that works best for everyone involved. Unfortunately, however, this simply might not be possible. There can be any number of reasons for this, including:
- Marital Misconduct: Sometimes, a marriage ends because one (or both) spouses have engaged in behavior that has hurt the other and damaged the marital relationship beyond repair. There are a wide range of behaviors that might fall into this category – affairs, addictions, and more. In these situations, one spouse may no longer trust the other, and there may simply be too much pain present to allow effective cooperation and negotiation.
- Emotional Instability: In other situations, there may not have been any specific “marital misconduct” – it may simply be the case that over time, marriage has been slowly deteriorating, and has reached the point where a couple simply can’t get along. There may be too much anger, too much resentment, and too much pain for collaborative and cooperative divorce to be an option.
- Imbalanced Power Dynamic: In some marriages, there may be an imbalanced power dynamic that simply prevents the couple from working together. One spouse might be abusive, and the other spouse might be afraid of speaking up and voicing an opinion for that reason. In other cases, one spouse may struggle with narcissism, or another psychological issue that prevents them from seeing a situation realistically and negotiating reasonably.
These are only a few examples of situations that may prevent a couple from being able to resolve their issues outside of a courtroom. If you find yourself in any of these circumstances, litigating your issues in a courtroom may truly be the best option. Although courtroom litigation can be stressful in some ways, in many of these situations, it can be tremendously helpful to have the structure of a courtroom setting, some space between yourself and your partner, and the impartiality of a judge who can look at your issues reasonably and resolve them fairly and objectively.
The Steps of the Litigation Process
Just as every marriage is unique, each divorce will be slightly different from any other. Nevertheless, familiarizing yourself with the general process can be helpful. Most divorces that are litigated in a courtroom include the following steps:
- Physical separation and residency: In many states, including North Carolina, there is a requirement that the couple is separated before being able to file for a divorce. In North Carolina, the law requires a physical separation. Essentially, this means that the couple no longer lives together, and at least one party does so with the intention to end the marriage. The separation must last for one year, during which time the spouses cannot resume living together. If they do, the one-year period typically begins again. In addition to the separation requirement, North Carolina law also requires that at least one spouse resided in North Carolina for six months before the filing of the action.
- Filing a petition: After the couple has been separated for the necessary length of time, one spouse may “file” for divorce against the other. This means that the spouse seeking the divorce files a divorce complaint with the Clerk of Court in the county where they live. The complaint will often set forth not only the spouse’s intention to pursue a divorce, but it will also likely outline the issues to be addressed during the divorce. This may include matters of child custody, property division, spousal support, and more. After the complaint is filed, it will be “served” upon the other spouse. In North Carolina, a notice of divorce can either be officially served by a sheriff, or it can be delivered by certified mail. After receiving notice of the divorce, the other spouse will have time to file a response, then then the divorce process will move forward.
- Discovery: The discovery process is the portion of a case where both parties will gather and organize evidence, think through the issues that they must address, and prepare their case. This may consist of gathering financial records, information regarding the children, testimony from important witnesses, and more. Generally, the parties’ attorneys will communicate with one another to gather and organize this information.
- Mediation: In many cases, a North Carolina court will order the parties to attempt to mediate their case before litigating it in a courtroom. There are any number of reasons for this, but generally, the hope is that the parties will be able to resolve their issues in a more cooperative and amicable way. Often, mediation is successful – sometimes, even when the parties don’t expect that it will be. In other cases, of course, it isn’t successful, and the parties must litigate their issues in court.
- Hearing the case in court: If mediation and other attempts at out-of-court resolution are unsuccessful, a court will hear the case in the courtroom. This means allowing both parties to present their arguments and offer evidence. Depending upon the complexity of the case, this could be a fairly quick process, or it could be fairly lengthy.
- Entry of an order and final divorce decree: After hearing the arguments of the parties and reviewing all of the evidence, a court will ultimately issue an order, and then a final decree of divorce. In the order, the court will outline its findings and directions to the parties concerning their issues. That order is binding upon the parties, and they will be required to follow it unless it is later modified by the court.
Generally, this is the procedure that most divorce cases will follow. Certainly, however, all cases will be slightly different. As a result, it’s important to find an attorney with knowledge and experience that you can trust, and who can guide you through the process each step of the way. At The Law Office of Dustin McCrary, we’re here for you.
Dustin McCrary – Your North Carolina Divorce Attorney
Regardless of where you find yourself in the divorce process, you will need a knowledgeable, experienced, and talented attorney on your side to guide you through it. This is true whether you are addressing your issues inside of court or out. At The Law Office of Dustin McCrary, we’re here to do exactly that. We understand every aspect of the divorce process in North Carolina, and we’ve successfully represented countless clients on this journey. We would be honored to do the same for you. We’ll meet you where you are, and we’ll walk with you every step of the way.