Obtaining a simple divorce in North Carolina can be accomplished without making an actual appearance before a Judge. In most cases you will need a Divorce Attorney to represent you in order to avoid a court appearance, however hiring a Divorce Lawyer to obtain a simple divorce is not terribly expensive, usually between $800.00 and $1500.00. There are two methods for obtaining a divorce without making a court appearance: a divorce by summary judgment or a divorce before the clerk.
Divorce By Summary Judgment.
In order to obtain a divorce in North Carolina, you will be required to file a Complaint for Absolute Divorce along with a Civil Summons and whatever other documentation is required in your jurisdiction. The filing party is the “Plaintiff” and the other party is the “Defendant”. The Defendant has thirty days from the date of service in which to file an “Answer”, or a written response to the allegations and claims made in the Complaint.
In most cases, the Defendant in a simple divorce files no response at all or files an Answer admitting the most pertinent allegations, which generally consist of when and where the parties where married, the names and birth dates of any children, and that the parties separated on this date with the intent to remain permanently separate. So long as the parties have been separated for at least one full year, the Court will allow the divorce. No fault or other grounds need be alleged.
If the Defendant fails to file an Answer or files and Answer admitting the allegations regarding the marriage and date of separation, the Plaintiff (or Defendant) may then file Motion for Summary Judgment. Summary Judgment is a request to the Court to enter a Judgment based upon the fact that there is no disputed issue of law or pertinent fact and that the moving party is entitled to the relief requested as a matter of law. In this case, if you have been separated for a full year, have at no time since resumed the marital relationship, and when you separated at least one of you did so with the intent that the separation be permanent, then the Court must grant the divorce by law.
The Motion for Summary Judgment need only be calendered by the Clerk of Court and a Notice of Hearing sent to the opposing party advising them of the date of the hearing (if they filed an Answer). On the date of the hearing, the Judge will review the Court file and evidence already on the record to ensure the Complaint was properly prepared, served and the parties noticed of the hearing. If everything is in order, the Court will sign the Judgment of Divorce (prepared by the Moving Party) and your divorce will be entered. A copy of the Judgment of divorce must be filed and served upon the opposing party as well.
Divorce Before the Clerk
Many jurisdictions allow what is commonly referred to as a “Divorce before the Clerk”. This type of divorce is similar to a “default judgment” or “judgment on the pleadings” as provided for in the North Carolina Rules of Civil Procedure, and it is entered by the Clerk of Court as opposed to a District Court Judge. In order to obtain a divorce by the clerk, the Defendant would have to again be properly served, and would have to either fail to file an Answer, File an Answer admitting the pertinent allegations, or file a waiver of his or her right to file an Answer. The Clerk will review the file and matters of record to ensure the Complaint was properly verified, the appropriate allegations are made, the Complaint was lawfully served, and that the time for an Answer has expired, the Answer filed admits the allegations or was waived. If everything is in order, the Clerk (usually an Assistant Clerk) will sign and enter the Judgement of Divorce by the Clerk.
While there are technically other methods wherein a Judgment can be obtained without formal hearing on the merits or as a matter of law, these two methods are the only methods commonly used in divorce proceedings. Even these two methods can be difficult without the assistance of a Divorce Attorney. Most unrepresented parties still use “testimonial divorces” which still require the summons and complaint, proper service, as well as the added step of calandering and noticing a testimonial hearing wherein the Plaintiff (or Defendant) will be required to attend a hearing and take the stand to put evidence on the record to support their claim for divorce.
However you choose to obtain a divorce, be certain that you have discussed your situation with a local Divorce Attorney beforehand. Obtaining a Divorce in North Carolina prior to resolving claims for property (Equitable Distribution) or spousal support (Alimony) will bar you from ever making those claims in the future. This means that you will not be able to divide any assets or debts through North Carolina’s Equitable Distribution Law or seek any monies for support from your spouse under North Carolina’s Alimony law. The decision on whether or not hire an attorney to actually obtain your divorce or which method of divorce you choose is less important than being certain obtaining your divorce now will not do more harm than good.
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