North Carolina requires a 12 month separation period, followed by a filing for an official divorce decree. Factors such as alimony, child support, property division, and many others can extend the length of time for a divorce to become finalized.
Typical Length of Divorce Proceedings
How long are actual divorce proceedings? Well, longer than it takes to get married, but I am sure that comes as no surprise!
As a Raleigh Divorce Lawyer handling North Carolina Divorce Cases for 14 years, I typically tell people to expect your divorce to take about ninety days with no complications, but understand it could take longer.
Then, when I hand my Client their divorce Judgment in forty five days I’m a miracle worker!
Well, that is not exactly true, but my point is that forty five days from the date the complaint is served is about as quick as you can expect a divorce to be finalized, with ninety days being as long as the process would typically take. There are of course issues that you must address before you file a claim for divorce, so lets make sure you are eligible to file for a divorce before you pop open the champagne.
What Does North Carolina Require for Divorce?
North Carolina divorces require the parties to have been physically separated for twelve months and one day before a divorce action may be filed. I cannot begin to count the number of times someone has asked me “what if my spouse sleeps in a separate bedroom?”
The law requires actual physical separation meaning that you live at a completely different residence. The law is trying to ensure that parties do not speed up their divorce date by fibbing in this regard, so they make sure that there truly is a separation.
Serving Your Spouse with Complaint for Divorce
Lets talk about the particulars: On separation day 366, you can file your Complaint for Divorce, which must be served upon your spouse along with a copy of the Summons and any other forms required by your jurisdiction.
If you or your spouse is a resident of Wake County, you can obtain a simple Divorce Packet from the Wake County Clerks Office which has the basic forms and documents.
Once filed, you will need:
1. To have the documents served by the local Sheriff’s office,
2. By certified mail with return receipt requested, or
3. By your spouse signing and filing an Acceptance of Service.
If you are unable to locate your spouse, you can, in some cases, serve by publication but this process is much more complicated and should be avoided if at all possible.
In some rare cases, you can serve your spouse via Federal Express if the Sheriff’s office is unsuccessful, again however this type of service is very limited and only allowed in very narrow circumstances.
What is Required of Your Spouse?
Once your spouse is served, they will either:
1. Do nothing,
2. File an answer admitting the allegations,
3. File an answer denying the allegations,
4. File for an extension of time to answer (which simply gives them 30 more days to file a response), or
5. A combination of admitting or denying along with filing counterclaims
Counterclaims are a different story entirely depending on the claims made, so we will not address those in this article apart from suggesting in the strongest possible terms that you need to meet with an experience North Carolina Divorce Attorney to address any counterclaims immediately. You cannot ignore counterclaims, and you cannot delay in addressing them.
Moving Forward with Divorce
If your spouse admits the allegations or fails to respond within thirty days from the date of service, you are free to move forward with setting your divorce hearing. In most jurisdictions, you have to set what is known as a testimonial divorce on certain days, and many have certain local forms required in order to calendar the hearing. In any event, the best practice is to file a Notice of Divorce Hearing setting the date of the divorce hearing at least ten days prior to the hearing, and mail it to the opposing party.
If the allegations are denied, you must schedule a hearing in similar fashion, however you will need to be prepared to show evidence of your date of separation, and any evidence you have that the separation, when it happened, was intended to be permanent. You must also be prepared to demonstrate that at no time since the separation was the marital relationship resumed. It is important to understand that “evidence” does not mean “proof.”
In other words, your testimony is evidence all by itself, so do not be too concerned about the lack of documentary evidence of people’s intentions or how a separation came about. In most cases it is sufficient if a party can produce a lease, change of address forms, or some other evidence that an address was changed along with testimony that it that party intended to be permanently separate.
Divorces are very rarely contested, and so long as you have completed, filed and served the paperwork correctly, you will be on your way to a divorce. You will of course need at least three copies of properly prepared Divorce Judgment on the day of Court for the Judge to sign along with a certification of divorce form which is available at the clerks office. The final judgment, if all goes well, will be filed and you must serve a copy on your now ex-spouse.
Prepare for Disputes
So now you know more about the time periods involved in getting divorced. Forty five to ninety days being normal, some divorces can take six months or longer if there are major disputes or you cannot locate your spouse. These are rare complications, but they can happen. So it is important not to plan your life around the expectation of being divorced on a particular date. If you must, allow yourself three months at least, and do not be shocked if it takes longer. If you have no idea where your spouse is, you can expect things to take longer.
Make Necessary Claims BEFORE Your Divorce is Final
Finally, the most important thing I wish to stress about getting divorced is that once you are divorced, you will not be able to file any claims for equitable distribution (property division) or alimony. The claims are barred after a divorce. This means that all of the marital claims involved in your divorce need to be settled, or at least a claim filed in court before you proceed with a divorce. As always, it is very important to at least consult with an experienced divorce lawyer before you get divorced, or if you are facing a separation or divorce.
Thanks for checking in and please contact me with any questions.
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