1) How long do we have to be separated before we can file for divorce?
You can file for divorce “if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six (6) months.”
2) How long will the whole process take once the complaint is filed?
It depends. When the plaintiff files a complaint for absolute divorce, a defendant is entitled to 30 days to respond. If a defendant fails to respond to the complaint within 30 or 60 days if applicable, the plaintiff is entitled to proceed with their claim for absolute divorce.
3) What if I am in the military and live out of state? Can the divorce still be filed in NC?
Yes! As long as there is one party that resides in North Carolina for a minimum of six months. The divorce will have to be filed in the county the resident resides in.
5) Is spousal support available while divorce is pending in court?
It is up to the court to order that one spouse provide support to the other during the pending stages of the divorce.
6) When is it considered abandonment by a spouse?
Abandonment occurs when a spouse intentionally moves out of the martial home with the intent to remain permanently apart without the consent of the other spouse.
7) Is your spouse entitled to alimony if they cheated?
No! A spouse that is found dependent by the court is not entitled to alimony if they have had sexual relations with another person that is not their spouse at any time prior to the date of separation.
8) What if my spouse does not agree to the divorce, can I still move forward with the divorce complaint?
You can obtain a divorce decree whether your spouse agrees with it or not. There are just two requirements: you and your spouse have to have been separated for one-year and one of you has to have been a resident of North Carolina for 6-months prior to the filing of the divorce.
Adkins Law specializes in Family Law and is prepared to help you with your divorce. We understand you may have more questions before you proceed with a divorce that is why we offer consultations. Give our office a call to schedule your consultation.
A common question that comes up when dealing with child custody issues for service members involves deployments. Can my ex use my past and / or potential future military deployments against me in our custody matter? In North Carolina, in a proceeding for child custody of a service member, a court may NOT consider a parent’s past deployment(s) or possible future deployments as the ONLY basis in determining the best interest of the child. The court MAY consider any significant impact on the best interest of the child regarding the parent’s past or possible future deployments.
Thus, in determining what is in the best interest of the minor child for custody arrangements, military deployments of a parent may be considered as a factor, but may not be the only factor to consider in determining a custody arrangement.
Contact Adkins Law if you wish to discuss your child custody issues with a family law attorney.
The NC Court of Appeals acknowledged that military disability pay cannot be distributed by a court in equitable distribution, It is seen as income that can be considered when the court is looking for a source of payment. In reaching this decision, the court rejected the argument that this rule was changed by the recent decision in Howell v. Howell by the US Supreme Court. Where the Court reiterated that federal law prohibits the distribution of military disability in equitable distribution.
Military Disability Pay Cannot be Distributed in ED
The federal Uniformed Services Former Spouses’ Protection Act (USFSPA) authorizes states to treat veterans’ retired pay as property which is divisible upon divorce. Therefore, federal law prohibits the distribution of military disability benefits in equitable distribution proceedings. Military disability pay is the separate property of the veteran.
Retirement Can Be Converted to Disability
Unless a retired service member qualifies for concurrent pay, a service member cannot receive both disability pay and retirement pay. This means that many service members must waive their retirement pay in order to receive the disability pay. Many disabled service members decide to change their retirement pay to disability pay when they become eligible, because disability pay is not taxed and cannot be distributed in divorce proceedings.
A service member can waive retirement for disability at any point after a service member becomes entitled to receive disability pay. If the conversion occurs before a court enters an order for equitable distribution, the court can consider the disability payments as a distributional factor, but the court cannot give dollar-for-dollar “credit” in the distribution to make up for any retirement pay lost because of the conversion.
When this conversion occurs, the amount of retirement pay received by the former spouse of the service member generally is reduced. A trial court may not prohibit a service member from converting retirement pay to disability pay in the future.
However, North Carolina appellate courts as well as appellate courts in other states have held that federal law does not restrict the ability of a state court to enforce a judgment dividing military retirement pay entered before a service member converted the retirement pay to disability pay. Therefore, amendments to retirement distribution orders made by trial courts to initiate the terms of the court order have been approved.
The Servicemembers’ Civil Relief Act (SCRA), formerly called the Soliders’ and Sailors’ Civil Relief Act, was implemented to protect military servicemembers from being sued while on active duty, for up to one year after they are released from active duty.
The law requires that before any lawsuit may be filed against a servicemember, a plaintiff must provide proof that the servicemember is not on active duty before adverse action is taken. Thus, if a servicemember has not made an appearance in a case, no judgment may be entered until the plaintiff files an affidavit stating whether the defendant is in the military. The law defines a “judgment” as “any judgment, decree, order, or ruling, final or temporary.” 50 U.S.C. app. Sec. 511(9). SCRA states that: “[T]he court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit-
(A) Stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or
(B) If the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.”
If the plaintiff’s affidavit establishes that the defendant is not in the military, the court may proceed with the case. The court, however, may require that the plaintiff post a bond to compensate a defendant later allowed to set aside a judgment because he or she actually was on active duty.
If plaintiff’s affidavit before the court shows that a defendant, who has not made an appearance in the case, is on active duty, “the court may not enter judgment until after the court appoints an attorney to represent the defendant.” This means that the court cannot enter any order, temporary or permanent, before appointing an attorney when a defendant servicemember has not made an appearance.
After an attorney has been appointed to represent the servicemember who has not made an appearance, the court must stay the case for at least 90 days either “upon motion by the appointed counsel, or on the court’s own motion, if the court determines that:
(1) There may be a defense to the action and a defense cannot be presented without the presence of the defendant; or
(2) After due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.”
If you are in the military and are facing any type of non-criminal judicial or administrative proceeding, including divorce, child custody, child support, and / or claims of domestic violence, and would like to discuss your rights under SCRA, contact Adkins Law. If you have not appeared in the case, you may have an attorney appointed to represent you, or may have the case stayed for at least 90 days.