Divorcing your spouse who does not live in the United States can be a difficult and frustrating process. Service of court documents is the challenge, and service is required in order to process your divorce. Here is how you obtain service on your spouse in a foreign country:
Step 1. Contact the embassy for your spouse's country of residence. The method for serving your spouse with your divorce papers outside of the United States will depend largely on the laws of his or her country. The U.S. Department of State can also provide you with this information.
Step 2. Mail the divorce complain and summons to your spouse (if your spouse’s country of residence allows service by mail). China, Japan, Germany, Poland, Argentina, Venezuela and Switzerland, for example, are among many countries that do not. If the country your spouse is living in permits service by mail, send your complaint to him by international registered mail, and complete postal Form 2865 for a return receipt.
Step 3. Contact the court where you filed your complaint if your spouse’s country of residence will not accept service by mail. If that country is a signatory to the Hague Service Convention, the court can request process of service as a “letters rogatory” procedure. The court will forward a copy of your complaint to a process server in that country and work through its government to get your complaint served.
Step 4. File your mail return receipt with the court to prove that your spouse received your complaint if you were able to serve him by international registered mail, if you have any questions regarding North Carolina’s form you can call the court clerk and ask. The court clerk can advise you which form you must complete and attach to the international mail receipt. If the court has served your spouse through the "letters rogatory" process, you generally will not be required to do anything more, but check with your court to be sure.
If you need to speak to a family law attorney regarding a divorce, and obtaining international service, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience.
1) How long do we have to be separated before we can file for divorce in NC?
Under North Carolina General Statute (N.C.G.S.) § 50-6 provides that either party may apply for divorce but only “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 divorce process take once the complaint is filed?
It depends each county in North Carolina is different and has its own local rules and procedures when processing a complaint for absolute divorce. When the plaintiff files a complaint for absolute divorce, a defendant is entitled to 30 days to respond to the lawsuit. A defendant is may ask the Court for additional time in which to respond and in most cases a Court will allow a permit an additional 30 days for the defendant to respond to the complaint. 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. In Mecklenburg County, unlike some other counties, no court appearance will be required by either party for a Court to enter a judgment of absolute divorce.
3) What factors does the court look at in determining alimony?
Under N.C.G.S. § 50-16.3A(a), “the court shall award alimony to the dependent spouse...upon a finding that the other spouse is the supporting spouse, and that an award of alimony is equitable after considering all relevant factors, including those set out in subsection (b) of this section.”
N.C.G.S. § 50-16.3A(b) “In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including:
(1) The marital misconduct of either of the spouses. [The court will consider all evidence of martial misconduct that has occurred during the marriage and prior to the date of separation.];
(2) The relative earnings and earning capacities of the spouses;
(3) The ages and the physical, mental, and emotional conditions of the spouses;
(4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others;
(5) The duration of the marriage;
(6) The contribution by one spouse to the education, training, or increased earning power of the other spouse;
(7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
(8) The standard of living of the spouses established during the marriage;
(9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs;
(10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
(11) The property brought to the marriage by either spouse;
(12) The contribution of a spouse as homemaker;
(13) The relative needs of the spouses;
(14) The federal, State, and local tax ramifications of the alimony award;
(15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
(16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property.”
4) What if I am military and live out of state? Can our divorce still be filed in NC?
Yes, as long as one party resides in North Carolina for six months. The divorce will have to be filed in the county the NC resident resides in.
5) Is spousal support available while divorce is pending in court or only after the divorce has become final?
It is up to the court to order that one spouse provide support to the other during the pendency of the divorce action and/or after the divorce has become final. Also, support that is awarded pending the final decree of divorce is not to extend beyond the period necessary for the prosecution of the divorce action.
6) When is considered to be abandonment by 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, and without provocation by the other spouse.
7) Is your spouse entitled to alimony if they cheated on you?
No. Under N.C.G.S. § 50-16.3A(a) provides that a spouse that is found dependent by the court is not entitled to alimony if he or she has 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 go forward with the divorce?
Yes. You can obtain a divorce decree whether your spouse agrees with it or not, as long as you and your spouse have been separated for one-year and one of you has been a resident of North Carolina for six-months prior to the filing of this divorce action.
9) What are the types of divorce that NC recognizes?
North Carolina is a “no-fault” state which means that neither party has to prove fault of the other in order to file or be granted a divorce decree, you are only required to be separated for one-year and one of the spouses must have resided in NC for six-months prior to filing for divorce. Further, North Carolina recognizes two types of divorces: (1) “absolute divorce” and (2) “divorce from bed and board.”
(1) “Absolute divorce” is like a no-fault divorce, either party can obtain, once you and your spouse have lived separate and apart for one-year.
(2) “Divorce from bed and board” is not technically a divorce but rather a judicially authorized legal separation. There are six grounds for this type of divorce based on injury to the party filing for divorce as provided under N.C.G.S. § 50-7. “The court may grant divorces from the bed and board on application of the party injured…in the following cases if either party: (1) Abandons his or her family, or (2) Maliciously turns on the other out of doors.
(3) By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under N.C.G.S. § 50B-1.
(4) Offers such indignities to their spouse as to render the condition his or her condition intolerable and life burdensome.
(5) Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of the spouse burdensome.
(6) Commits adultery.” [NCGS § 50-7]
10) Does North Carolina recognize common law marriage?
No, North Carolina does not recognize common law marriage. If, however, you moved to North Carolina from a state recognizing common law marriage, you still may need to file for an absolute divorce.
If you need to arrange a consultation with a family law attorney concerning separation and/or divorce, contact Adkins Law. We have locations in Huntersville and Ballantyne for your convenience.
If you are considering a divorce you will want to be proactive and make sure you are taking the right steps to ensure a positive outcome. Contacting an attorney is a good first step. Your attorney may recommend that you seek marriage counseling even if you don’t think your marriage can be saved. A divorce is a major life event and a counselor can help you navigate the emotional ups and downs you will likely experience. Your attorney will discuss the laws specific to your state and the steps that you should take to ensure the most favorable outcome to your divorce proceeding.
STAY IN YOUR HOME
Until you speak with an attorney, you should not move out of your home unless it is an abusive situation. In situations of abuse, you should always put the safety of you and your children first. Leaving your home without reason, could be considered abandonment and could jeopardize spousal claims for support. In NC, abandonment means that a spouse has moved out with the intent to cease co-habitation. Abandonment can also impact the custodial rights of the abandoning spouse. By leaving the children with your ex, you are essentially saying that they are capable and fit to raise the children. In addition, if you leave, you may be unable to return to the house until the property has been divided which could take a year or even more in some cases.
SAFEGUARD YOUR ASSETS
An attorney can guide you on how to best protect your assets. You will want to take possession of certain types of assets like cash, collectibles, jewelry, etc. that your spouse might try to liquidate. Your attorney might also suggest closing joint bank accounts and credit cards.
NC DIVORCE LAW
Some states are “Fault” states meaning that the judge will consider the actions of the “guilty” spouse to determine if there are grounds for divorce. In “No Fault” divorce states the judge does not consider the actions of the spouses. All that is required is that one party wishes to end the marriage. NC is a hybrid state – judges can consider marital misconduct or “incurable insanity” but can also dissolve a marriage if one spouse has determined the marriage can’t be saved.
WHAT TO EXPECT
A No-Fault divorce in NC requires two things. First, you must live separate and apart from your spouse for one full uninterrupted year. Second, at least one of you must have lived in NC for the six month period prior to filing the divorce papers.
Adkins Law has offices in Huntersville and Ballantyne. If you need to schedule an appointment to meet with a divorce attorney, contact Adkins Law.
Contact Adkins Law to speak with an experienced Huntersville divorce attorney about your family law matter. One of our Huntersville divorce lawyers will arrange a family law consultation with you to discuss your strategies and options moving forward.
An uncontested divorce occurs when neither party is arguing over anything and they simply want to terminate their relationship. Typically, the parties have either already divided their property or there wasn’t any property to divide.
How do I get a divorce in Mecklenburg County? In Mecklenburg County, there are a number of requirements before you can file for divorce:
1. Either the plaintiff or the defendant must have lived in North Carolina for at least six months prior to filing for the divorce.
2. The plaintiff and the defendant must have lived separate and apart for at least one year and one day prior to filing for the divorce. Once the statutory time period has passed, either party may file for divorce.
3. The plaintiff must be able to prove that he or she served the defendant. This can be done through certified mail, the sheriff, or publication. Service is typically done by certified mail before using the services of the sheriff. If the defendant cannot be located, service by publication may be used.
Once I file for divorce in Mecklenburg County, how long does it take? Once the plaintiff files for divorce, the defendant has 30 days to respond. If 30 days have passed and the plaintiff can prove that the defendant has been served, the plaintiff may submit a motion for summary judgment for divorce. Typically, a court date for the motion for summary judgment will be set several weeks out from the date the motion is filed. The average divorce may take anywhere from three to six months to be finalized.
Am I required to appear in court for a divorce in Mecklenburg County? No. In an uncontested divorce in Mecklenburg County, neither party has to go to court: your divorce lawyer may handle the entire matter for you. This is true even if you live in another county.
What does it cost to get a divorce in Mecklenburg County? In Mecklenburg County, court costs for filing a divorce are $225.00. There is also a $20.00 fee for a notice of hearing and a $10.00 to resume your maiden name. Additionally, you must pay to have the divorce complaint and summons served. Although this typically costs around $10.00 to serve via certified mail, it can be more expensive if service is required by sheriff or by publication.
At Adkins Law, the goal is to make divorce as fast and painless as possible. We charge comparable and reasonable rates and are available for you when you need us. Adkins Law is located in Huntersville NC and primarily serves Mecklenburg County. If you need a divorce lawyer in Huntersville NC, a divorce lawyer in Cornelius NC, or a divorce lawyer in Charlotte NC, please contact Adkins Law.