First, you must have a properly prepared and verified Complaint for Divorce. In this complaint, you must allege the general background and jurisdictional allegations, such as what county you live in, where you were married, when you were married and when you separated. Further, you must specifically allege that at least one of you, when you separated, did so with the intent to remain separate and apart, and that at no to time have you resumed the marital relationship. States vary on the required period of separation before a divorce will be granted. North Carolina requires a separation of 12 months or greater.
North Carolina requires no “proof” beyond a verified or sworn statement making the required allegations which are usually made in the Divorce complaint. There is a misconception among many that one must have some sort of proof establishing a “legal separation date”, but that is not the case. If the other party disputes the allegations, then additional proof may be necessary. This rarely happens, but on occasion one party will file and Answer to the Divorce Complaint claiming the separation date was false or that they had resumed the marital relationship at some point during the separation period. In that event, the Court will hear evidence and decide based on the greater weight of the evidence. If you have been separated for longer than 12 months with the intent to remain separate and apart, and at no time have resumed the marital relationship, then there truly is no factual defense to the entry of the divorce.
The complaint must be accompanied by a civil summons for the clerk of court to sign, and must be filed and served in the appropriate county, which is normally the county in which either party resides. The other party may file an answer admitting or denying the allegations, or they may not, in which case the allegations will be deemed admitted. Once you have your complaint and summons (three copies of each at least), you are ready to file. Don’t forget your filing and service fees, and unless you are an attorney, the clerk does not accept checks.
After you file your complaint and summons, you must elect a method to serve the Defendant with the paper work. In North Carolina, this is typically done by the local sheriff’s department, certified mail, or by the Defendant accepting service formally. If you have trouble getting the Defendant served, you will need to consult the Rules of Civil Procedure which are a bit too complex to fully explain in this article. Once the complaint and summons is served, you must wait 30 days to allow the Defendant to answer the complaint. If he does, then you will proceed based upon what he says in his answer. If he admits your claims, you are free to proceed. If they are denied, you may have some work to do.
Now once your 30 days are up and no answer has been filed, or an Answer agreeing to the substantive allegations is filed, you are ready to calendar your divorce hearing. An attorney will usually file a Motion for Summary Judgment or seek a divorce before the clerk. A non-lawyer handling their own divorce will likely be best served to simply a calendar what is called a testimonial divorce. This will require whatever local form your county requires to set a hearing, and the Defendant must be served with that form as well as a filed Notice of Hearing. This document formally notifies the Defendant of the Court date, time and location so he will have an opportunity to appear. You must certify that you mailed it to him at his address. The Defendant will need at least 10 days notice prior to any hearing, so be certain to count your days before setting your hearing.
Before your hearing, you will need to prepare the actual Divorce Judgment, as well as a certification for Vital Statistics. Your divorce judgment is what the judge will actually sign and that becomes an order of the Court. You will need at least 3 copies. In Court your case will be called and you will be sworn in, and essentially verify by repeating the allegations in your complaint.
If you have done everything correctly, then the Judge will grant your divorce, and the only thing left will be filing and serving of the Order. Many people make some mistakes along with way which require them to have to re-file certain things or re-set their divorce hearing. Pay attention to detail to avoid these problems.
Now, you are divorced. At this point it’s a little late to think about the consequences of divorce, but just in case you have not, lets touch on them. A divorce will eliminate the right of each party to file a claim for Equitable Distribution (division of property) or Alimony. A divorce can affect your tax filing status. A divorce can affect your ability to inherit property. So what does all this mean? Well, if you have anything you need to divide or if you are expecting money or other assets from your spouse as a result of your divorce, it had better clearly set forth in a valid Separation Agreement and Property Settlement. If you have no such contract and you were expecting to divide retirement accounts, houses, cars, debts or cash, then you will be very disappointed. You have lost your ability to make your spouse do anything with regard to marital claims.
It is imperative to ask questions before you file for divorce. Filing for divorce can lead to the loss of untold thousands in property and support. In some cases an unexpected filing can cause your spouse to file counterclaims for Equitable Distribution and Alimony just to preserve them when a settlement could have been easily reached beforehand. If you are thinking of filing for a divorce, discuss your situation with an experienced divorce attorney in your area so that you can make informed decisions and avoid very costly mistakes.
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