Legal matters can be complex – and divorce is no different. If you aren’t a trained legal professional, trying to sift through the laws and understand them can be confusing and frustrating, to say the very least. That confusion and frustration is very normal. The good news, however, is that you don’t have to feel that way. Certainly, obtaining the help of an attorney who has experience and knowledge about the divorce process is essential to helping the process go smoothly and reducing confusion and stress. In addition, however, understanding some of the basics about North Carolina divorce law and the process of divorce generally can be very helpful in providing peace of mind.
First and foremost, it’s important to understand that North Carolina is a no-fault divorce state. Essentially, this means that a married couple doesn’t need a specific “reason” or “wrong” that was committed by either spouse to get divorced. To file for divorce in North Carolina, you must have been a resident for at least six months, and there are essentially two possible grounds:
- Separation for one year: This requirement is essential. No official legal paperwork is necessary to begin the separation, but one of the spouses must move out of the marital home and intend to end the marriage. This legal separation requirement is for one continuous and uninterrupted year. If the spouse who moves out moves in again, or if the couple decides to attempt to reconcile at any point, the one-year period begins again.
- Incurable insanity: Although not all states permit insanity as a ground for divorce, North Carolina does. Basically, the law says that if one of the spouses is “incurably” insane (not just mentally unwell), and the couple has lived separate and apart for three consecutive years, then the sane spouse can file for divorce.
After you have sufficiently established grounds for divorce, you will be ready to begin the divorce process itself. The basic divorce process in North Carolina is as follows:
- File a divorce complaint with the clerk of court in your county: This is simply the official way of beginning the divorce process, in which the filing party states the grounds for the divorce, that the residency requirement has been met, and any other information the court requires.
- The complaint is served upon the other spouse, and an answer is filed: As with most legal matters, the filing party must officially notify the other party of the legal matter by officially “serving” them with notice of the lawsuit. This is true even if, as in most divorce cases, your spouse is already aware that you wish to divorce them. The spouse is then given time to file an answer or response, and the process is officially underway.
- Any temporary orders are sought and issued: Making the transition from one home to two can be difficult, and sometimes, the intervention of the court is necessary to ensure that financial support continues to be provided during the divorce process and that issues concerning custody of the children are addressed, at least temporarily. Attorneys will seek necessary orders in this respect from the court.
- Discovery is conducted and pleadings are exchanged: An essential part of the legal process is gathering important information and building a case. The attorneys will gather this information as they prepare for either out-of-court settlement negotiations or trial, depending upon the particular circumstances of the case.
- The parties engage in out–of-court settlement negotiations or trial: In North Carolina, all couples are required to at least attempt mediation before going to trial. In many cases, mediation or another out-of-court method of resolution is successful in resolving the matters at issue. If not, the parties will begin formal litigation, and a court will ultimately decide the issues for them.
- The parties end the divorce process with an official divorce decree and either a settlement agreement or a court order: Depending upon which route the parties choose to address their issues, the divorce process will be finalized with either an agreement between the parties that addresses their issues or a court order directing them as to how each issue is to be resolved. Regardless, at the end of the legal process, an official divorce decree will be entered, and the parties will be free to move forward toward the next chapter ahead.
Without question, every couple is unique. Your circumstances and your marriage, and therefore your divorce process, will be slightly different than any other. Nevertheless, there are common issues that most couples must confront and address during the divorce process. These issues include:
and more! Regardless of the issues you confront in your divorce, there are two primary ways to resolve those issues – in a courtroom, or outside of a courtroom using alternative methods of dispute resolution, as we noted above. Let’s take a closer look at both options:
- Out-of-Court Methods of Resolution: Increasingly, many couples are choosing to resolve their divorce issues outside of a courtroom, and for good reason. Doing so gives couples the freedom and flexibility to truly think through and resolve their issues in a way that works best for their family. There are various methods to choose from when addressing issues outside of a courtroom, including mediation, arbitration, and collaborative divorce, just to name a few. The end goal of any of these methods is to walk away with an agreement that includes solutions that serve everyone’s best interest. After all, no one knows your family better or cares for your family more than you do. Being the primary voice in the resolution of your own issues is invaluable – not to mention that it can often save the time, expense, and stress associated with traditional litigation. Another advantage of addressing divorce issues via agreement is that if and when life circumstances change (as they usually do), you can choose together to modify your agreement as necessary, rather than seeking the intervention of a court to do so.
- Traditional Courtroom Litigation: Although resolving divorce issues outside of a courtroom has become increasingly popular, in certain situations, traditional litigation remains the best option. Sometimes, there is a dynamic in the relationship that simply makes working together cooperatively and openly impossible. Sometimes, emotions are still running high, and couples simply don’t feel that they’re ready to work through things together. In some cases, there may have been abuse, or issues of addiction, or one party who is mentally unwell and unable to rationally discuss and work through the various issues that are part of the divorce. Whatever the reason may be, traditional litigation is still a very viable and necessary option for some couples. In that case, each spouse will have his or her attorney who will help them to gather evidence, prepare arguments, and make their case to the court. After all evidence and argument has been presented, the court will make a decision and issue an order that is binding on the parties, and that will address how each issue is to be handled going forward. It is important to keep in mind that if a court enters an order in a divorce case, it is ultimately only the court that can modify that order. The parties must thus return to court and relitigate those issues if and when modification is necessary.
There may be other issues unique to your situation, that may arise as well. As with any legal process, it is essential to seek advice and representation from an attorney who understands divorce law, and who can guide you as to your particular circumstances, and the best steps forward in your case.
The Law Office of Dustin McCrary – Here Every Step of the Way
The divorce process, like all legal matters, can be complex, and difficult to navigate alone. The good news is, you don’t have to. At The Law Office of Dustin McCrary, we’re here to walk with you each step of the way. We understand every aspect of the divorce process, and we are proud of our reputation for helping countless clients through this process smoothly and successfully, and toward a bright new future ahead. We would be honored to have the opportunity to do the same for you. Wherever you are in the process, we’ll meet you there. Call us any time. We look forward to speaking with you soon.