North Carolina Divorce Questions

North Carolina men’s divorce attorneys provide answers to frequently asked questions about divorce laws and the divorce process in North Carolina.

What are the grounds for divorce in North Carolina?

In North Carolina, the grounds for divorce are that the couple must have lived separate and apart for one year and that one party must have resided in North Carolina for six months prior to the filing of the action.

You can also apply for divorce on the basis of incurable insanity. This ground is not often used due to the fact that you have to live separate and apart for three years and you need proof of incurable insanity.

What is a divorce going to cost me? Can I afford it?

There is really no way to determine how much a divorce is going to cost. The cost of filing an Absolute Divorce action in North Carolina is $75. You also need to factor in the costs of serving the other party and filing the other necessary documents with the court, as well as the additional cost associated if you are seeking a name change.

Do I really need to hire an attorney?

At least in Mecklenburg County, hiring a lawyer is not essential. The self-serve center has forms that individuals can fill out and apply for a divorce. However, you should see a lawyer prior to filing for divorce to make sure there are no other viable claims that you wish to pursue.

In North Carolina, if you are granted a divorce (i.e. the judge signs the divorce papers) then your claims for alimony and equitable distribution are barred. You need to consult with a lawyer to make sure that you understand your rights on the issues of alimony and equitable distribution prior to filing for divorce.

Does North Carolina grant divorces based on marital fault?

North Carolina is a no-fault divorce state. North Carolina does consider fault in other circumstances however (i.e. divorce from bed and board and alimony).

Can I get maintenance or will I have to provide maintenance to my spouse?

In a divorce action alone, it is merely the legal ending of your marriage.  An Absolute Divorce action does not decide the issue of maintenance. If you want to add the claims for post-separation support and alimony, you can, but an Absolute Divorce action alone is not enough.

In North Carolina, alimony and post-separation support are based on whether you can prove that you and/or your spouse are dependent and whether you and/or your spouse are considered the supporting spouse. A family law attorney would have to look at the facts of every case to determine whether or not support is a viable claim.

Can I change my name at the time of divorce?

Yes, you can change your last name at the time of divorce. The filing fee for a name change is $10. You can file the resumption of a former name within the divorce or subsequent to the divorce.

Can I get an annulment in North Carolina?

There are only a certain limited circumstances in North Carolina that would enable a party to obtain an annulment. If the parties are nearer in relation than first cousins or between double cousins, you may petition the court for an annulment. If one of the parties were married and are less than 16 years of age then an annulment can be considered, if there is no child or the female is not pregnant with child.

Additionally, if either party is already married (i.e. bigamy) or if either party is impotent at the time of marriage, annulment can be considered. Further, if one of the parties to the marriage were incapable of agreeing to marry (i.e. coercion or do not understand) then an annulment may be obtained.

Finally, if a female lured the male into marriage by stating that she was pregnant; the parties separated within 45 days of marriage; and have been separated for one year then the male can obtain an annulment if a child has not been born within 10 lunar months of the date of separation.

It is important to speak to an attorney about the specifics of your case to determine whether or not an annulment is a viable option.

When can I file for divorce in North Carolina?

In North Carolina, in order to file for an Absolute Divorce you must wait until you and your spouse have been separated for one year and one party must have resided in state for six months prior to the filing of the action.

When is my case going to be over?

There is no way to tell when the case will be over.  Once you file the complaint, the other party has thirty days in which to respond, and they can be granted an extra thirty days if necessary. After that time, you can schedule a hearing in front of the judge to hear the divorce. If the divorce is uncontested then it can be obtained fairly quickly.

Contested divorces (i.e. a fight over whether you have been separated for a year) can take longer. Also, if you are petitioning for a divorce due to incurable insanity, it can take longer based on the fact that you must prove that spouse is insane and thereby testimony from medical professionals may be required.

Do I have to go to court?

It depends. In some counties in North Carolina, there is the opportunity to get divorced without going to court. In Mecklenburg County, for example, as long as all the procedures have been met (i.e. six-month residency, one-year separation, service of the opposing party, and no issues of material fact), you do not have to show up for court.

In other counties, the court takes the testimony of at least one of the parties to determine whether an Absolute Divorce is appropriate.

If attempts to serve my spouse do not work, what is my next step?

If attempts to serve your spouse prove unfruitful, the next step is to serve by publication. If you are unable to serve the spouse by personal delivery, registered or certified mail, or by a designated delivery service (i.e. FedEx), then you need to try service by publication as a last resort.

Service by publication means putting a notice in the local paper where you believe your spouse is residing or, if that is unknown, in the county where the action is pending. You must put the notice in the paper once a week for three consecutive weeks. Upon publication, you then file an affidavit with the court stating the publication and the circumstances warranting the use of service by publication.

At what point during the process can a spouse remarry or start dating?

Until the judge signs the Divorce Judgment, you are not free to marry. Once the parties are separated, you are free to start dating, but dating prior to divorce may set you up for further possible exposure. Your spouse could use the fact that you are now dating someone to corroborate the fact that you were dating him or her prior to separation (i.e. adultery).

What if my spouse does not want the divorce?

In North Carolina, divorce can be obtained whether or not both parties want a divorce. As long as you have been separated a year and one of the parties has been a resident of North Carolina for six months prior to the filing of the action, then you can obtain a divorce. Consent by both parties is not necessary in North Carolina.

Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

In North Carolina, support, custody, alimony and property do not have to be decided before the divorce is final. However, if you want to preserve your claim to alimony and equitable distribution, you need to file these claims with the court prior to the Judgment of Divorce is granted.

If the judge signs the divorce prior to you asserting either of these claims, you will be barred from later bringing these claims in front of a judge. Both equitable distribution and alimony do not have to be decided prior to a Judgment of Divorce, they merely have to be pending.

How long do I have to live in North Carolina to obtain a divorce?

In North Carolina, one party has to reside in North Carolina for six months prior to the filing of the complaint. Therefore, as long as your spouse lives in North Carolina for six months and intends to remain in North Carolina, you do not have to live in North Carolina to obtain a divorce.

After I file for divorce, do I have to continue to live in North Carolina?

It depends. If both parties live in North Carolina and the other party stays in North Carolina, then you can leave the state and still have North Carolina retain jurisdiction over the divorce. If both parties reside in North Carolina, but different counties and you (as the plaintiff) leave the state, your spouse could petition the court to remove the case to the county where he/she resides.

What if I am in the military and out of state?

In North Carolina, you can still file for divorce. The requirement for jurisdiction in North Carolina only requires that one party reside in North Carolina for six months. You just need to file the divorce in the county where your spouse resides. North Carolina can still retain jurisdiction even if you are stationed out of the state.

What forms do I need to file for a divorce in North Carolina?

In order to file for divorce, you need a completed summons and a completed and verified complaint. In addition there is a fee that needs to be paid to the Clerk of Court. Please keep in mind there are additional forms that are required after the divorce has been filed (i.e. a Judgment of Divorce).

How and where is a divorce complaint filed?

The complaint is filed with the Clerk of Court once the form is completed and the required fee is paid. The complaint merely states what you are asking and why (i.e. an Absolute Divorce, the fact that the parties have been separated one year, and one of the parties has lived in North Carolina for at least six months).

In the complaint you must also state whether or not there are children born to the marriage. If there are, you need to list their names in the complaint. Along with the complaint is the summons, which has the other party’s address on it. The summons merely states to the other party that an action has been filed against them and they are required to answer.

You need to make sure that you have additional copies of the summons and the complaint. While the court keeps the original, you need extra copies to be able to serve the opposing side with the documents, as well as a copy for your records.

Also, if you believe service is going to be an issue, I would make sure you have plenty of summons (at least four extra) signed by the Clerk of Court. That way, you have multiple originals to attempt service. While you only need a copy of the complaint, you need an original summons to be given to the opposing party upon service.

How do I serve the divorce complaint on my spouse?

In North Carolina, you first try to serve the complaint along with the summons by sheriff. If your spouse resides in North Carolina, the usual fee to have the sheriff serve is $15. I would contact the local sheriff agency to determine their fee for service.

If the sheriff is unable to serve your spouse, your next avenue is to try to serve by certified or registered mail. You can also try to serve by personal delivery by a proper individual or by a designated delivery service (i.e. FedEx). If all those avenues fail, you must then try to serve by publication.

Until the opposing party has been served with the divorce complaint you cannot do anything. You must wait until the opposing party has been served or that service by publication has been done and there has been no response. Each case is different and therefore it is nearly impossible to determine how long it takes to receive a divorce.

How is a divorce granted? Will I have to go to court?

Again, in North Carolina this varies county by county. Some counties require live testimony, while others do not. The divorce is granted once it is scheduled for hearing (after the opposing party has had the opportunity to answer the complaint or the opposing party has failed to come forward after service by publication).

Once the hearing has been scheduled, the judge ensures all the requirements have been met (i.e. service, jurisdiction, and the one-year separation) and then signs the Judgment of Divorce. Once again, you will need to speak to an attorney to determine whether or not a court appearance is necessary.

What typically happens if I go to court to obtain my divorce myself?

In Mecklenburg County, there is a self-serve center that has the necessary forms to file for divorce. They can help you fill out the forms and obtain a divorce. In other counties, there may be other free services that help people obtain a divorce without an attorney. I would speak to the clerk’s office in your individual county to see what services are offered.

However, I would speak to an attorney prior to filing for divorce on your own, so that they can discuss with you the other possible claims that may be available to you.

How do I prove fault for divorce?

In North Carolina, you do not need to prove fault for divorce. As long as you prove there has been a period of one year of separation and that one party has resided in North Carolina for six months prior to the filing of the action, then you can apply for a divorce. Fault as no place in a strict Absolute Divorce action.

At any time can a parent change a minor child’s last name without the other parent’s permission?

In North Carolina, a parent cannot change the minor child’s last name without the other parent’s consent except in limited circumstances. If the other parent is deceased, then the other parent can change the minor child’s last name. Also, if the minor child is 16, then the consent of the other parent is not necessary.

Additionally, if you can prove to the Clerk of Court that the other parent has abandoned the minor child (or if the minor child has been adjudicated abandoned) then it is possible to change the last name of the minor child without the abandoning parent’s consent.

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

No. North Carolina does not allow common law marriages. In North Carolina, you must either be solemnized as husband and wife in front of an ordained minister of any religious denomination, minister authorized by a church, magistrate, or in accordance with any solemnization recognized by any religious denomination, or federally or state recognized Indian Nation or Tribe.