Simple divorce is the informal term for absolute divorce, the legal termination of a marriage. Despite its name, a simple divorce isn’t always simple.
North Carolina grants simple divorces through a civil litigation process. Those seeking divorce must file a complaint for absolute divorce and enter a judgment for divorce.
Please note that it is essential to resolve all of your claims for property division (equitable distribution) and alimony prior to obtaining a divorce. In most cases, the entry of a divorce judgment will bar you from making those claims in the future.
It is always the best practice to consult with an experienced Raleigh divorce lawyer before filing for divorce. We can make sure all of your interests are protected from the very beginning of the process.
How To Get a Divorce in North Carolina
The process of getting a divorce in North Carolina is relatively simple, but it must be done according to protocol. If it is not done correctly, it can cause major problems down the road.
North Carolina requires a party seeking a divorce to prepare and file a Complaint for Absolute Divorce, accompanied by a Civil Summons and any other locally required filings such as cover sheets. All of the standard rules of North Carolina Civil Procedure shall apply.
In the Complaint, the Plaintiff or moving party must allege:
- That they were married on a certain date
- Are still married
- Have been separated for at least twelve months with at least one party intending that separation to be permanent
- The parties have not at any time since the date of separation resumed the marital relationship
In other words, you and your spouse must have been separated for at least 12 months and one day, and at least one of you must have intended the separation to be permanent.
You must also allege that you remained separated and did not resume the “marital relationship” during the separation period. The plaintiff should also name any minor children born to the marriage, including their dates of birth.
Other technical language (such as allegation of jurisdiction, status of parties, prayer for relief, etc) is advisable, however the aforementioned statements are the most important parts of the divorce complaint. One must also make certain to file the documents in the appropriate state and county. In Raleigh, you will file with Wake County. See N.C.G.S § 50-8 for additional information.
After filing, the divorce complaint must be served to the defendant pursuant to Rule 4 of the North Carolina Rules of Civil Procedure.
What Proof Does NC Require for Separation?
North Carolina does not require “proof” beyond a verified or sworn statement making the required allegations. Usually these allegations are made in the divorce complaint.
There is a misconception among many that you must have some sort of proof establishing a “legal separation date,” but that is not the case. If the other party disputes the accusations, then additional evidence may be necessary to convince the court that your allegation of the date of separation is correct.
This rarely happens, but on occasion one party will file an 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.
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. A hearing must still be scheduled and noticed appropriately. If everything is in order, the judge will grant your divorce.
Attorneys often make use of Motions for Summary Judgment or Divorces before the clerk in order to spare their client a trip to court. If you choose to represent yourself, you will appear and testify in your divorce case.
Finally, a judgment ordering your divorce must be signed and filed by the judge. In addition, a certificate of divorce will be prepared and filed for the record.
How Your Divorce Will Affect Your Life
The hardest part about getting divorced for most people is to understand the effect of that divorce, such as how you may be limiting or eliminating your ability to deal with other aspects of your end of your marriage such as support or property division.
Once the divorce is granted, if you do not have a pending claim for Post Separation Support, Alimony, and Equitable Distribution, or an Order or Separation Agreement fully resolving those issues, you will forever waive your right to have those issues adjudicated in Court.
If you have a valid Separation Agreement and Property Settlement, you can file an action based upon that Agreement after a divorce if the other party violates its terms, but if that Agreement does not provide for a final resolution of support and property division, then you will be left without a remedy in divorce law.
It is imperative to seek legal advice from a divorce lawyer and ask questions before you file for divorce. Filing for divorce can lead to the loss of untold property and support. In some cases, an unexpected filing may also cause your spouse to file counterclaims for equitable distribution and alimony just to preserve them when a settlement could have been easily reached beforehand.
Seeking a Simple Divorce in Raleigh?
If you have questions about simple divorce, our attorneys are here to help. Call (919) 301-8843 or complete the form below to learn more and schedule your no-obligation consultation.
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