Common Divorce and Separation Questions

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.