Divorce in North Carolina

Residency Requirements and Grounds for Divorce

Residency Requirements and Grounds for Divorce

Either you or your spouse must be a resident of North Carolina for six months to file for divorce.

Either spouse can get a divorce simply by stating in divorce papers that the spouses have been separated - meaning they have lived separate and apart without cohabitation - for one year. The other recognized ground for a divorce in North Carolina is incurable insanity or mental illness lasting three years.

The legal divorce process begins when one of the spouses files a "Complaint for Divorce" with the Superior Court or the District Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, the divorce can be finalized without a trial. If the parties can't come to an agreement, the court will set a time for a hearing.

After the Complaint for Divorce has been filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.

Dividing the Property

In North Carolina, all assets and debts acquired before and after your marriage - called marital property" and "divisible property" - will be divided "equitably" - in a manner the court believes is "fair" - when you divorce.

But not all property is considered marital or divisible property. The "separate property" of each spouse is not included in the property division and therefore you will be allowed to keep any separate property you own. Separate property includes:

Any property acquired before the marriage
Gifts and inheritances acquired during the marriage
Any property acquired in exchange for separate property, and
Any increase in the value of separate property

In deciding how to divide the property owned by a divorcing couple, the court will make an equal division by using the net value of the marital property and the net value of the divisible property unless it finds that an equal division is not fair. Then the court will divide the marital and divisible property equitably, considering the following factors:

The income, property and debts of each party
Prior support obligations
The length of the marriage
The age and physical and mental health of the parties
The need of the custodial parent to occupy the family home
The expectation of pension, retirement or other deferred compensation rights that are not marital property
The contributions of each spouse to the acquisition of marital property, including each spouse's contribution as a homemaker
Direct contributions to an increase in value of separate property that was made during the course of the marriage
The liquid or nonliquid character of the property
The tax consequences to each party of the division of property
Actions taken by either party to preserve or waste marital and divisible assets

It is important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a North Carolina lawyer can save you a lot of time and money.

Alimony

A court can order alimony in North Carolina, at its discretion. A court will generally consider such factors as:

Marital misconduct
The relative earnings and earning capacities of the spouses
The amount and sources of earned and unearned income of the spouses
The ages and physical, mental and emotional conditions of the spouses
The length of the marriage
The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find appropriate employment
The relative assets and liabilities of the spouses
The contribution of a spouse as homemaking
The relative needs of the spouses
Tax consequences of the alimony award

A court can order temporary alimony while the divorce is pending. Most alimony is ordered for a specific length of time. Once ordered, it can be modified only upon a showing of a "substantial change in circumstances."

Child Custody and Visitation

In North Carolina, the court will make child custody decisions based on what is in the "best interest" of the child if the parents can't come to an agreement. In deciding how much time each parent should spend with the child, the court may consider many factors, including:

Acts of domestic violence between the parties
The safety of the child and the safety of either party from domestic violence
The wishes of a child of sufficient age

The court will presume that both parents should have maximum involvement regarding the physical, mental, moral and emotional well-being of the child.

After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. It a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may decide to modify the visitation order, order makeup visitation for the time missed or order counseling or mediation.

Child Support

In North Carolina, child support is based on the combined gross income of the parents and how many children are being supported. If necessary, a court can set aside a portion of joint or separate assets of the parties in a separate trust or fund for the support of the child.

A North Carolina child support order can be modified if there has been a substantial change in the income or financial status of either party or the needs of the children.

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