Sometimes marriages do not work out as planned. When that happens, couples separate and later divorce. The following explains the law of separation and divorce by answering frequently asked questions by clients on those matters.
What Will It Cost?
If you are able to settle the issues of child custody, child support, equitable distribution, spousal support, by way of a separation agreement, or if those issues are non-existent in your case, then a divorce case will cost you $500.00 in attorney fees, $225.00 filing fee ($10.00 extra if you want to resume the use of your maiden name), the service fee and a $20.00 notice of hearing fee.
Do I Need to File for Separation?
No. Separation happens once a husband and a wife begin living separate and apart. And, at least one of them has the intent to remain separate and apart.
Do I Need an Agreement or Court Order to be Legally Separated?
No. You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way.
Is it OK if We Continue Living in the Same House?
No. Living separate and apart means you must be living in separate residences. If you are living in the same house, you are not legally separated.
What are the Grounds for Divorce?
There are only two grounds for divorce: 1) Separation for One Year; or 2) Incurable Insanity of One Spouse and Separation for Three Years. The vast majority of marriages are dissolved based on the ground of separation for one year. In order to get divorced, you must have been separated for one year and at least one spouse must have had the intent to remain separate and apart. In addition, one of you must have been a resident of North Carolina for at least six months. Fault is not necessary to obtain a divorce.
What Do I Need to Do to Get Divorced?
You have to file a complaint (lawsuit) asking for a divorce. You cannot file a divorce complaint until after you and your spouse have been separated for one year. You have to serve your spouse with the complaint. Service is usually accomplished by certified mail or by personal delivery made by a Sheriff deputy. Then you will need a hearing in front of a judge. The judge has to enter a Judgment declaring you divorced. You are not divorced until the judge signs a Judgment and the clerk file stamps it.
Do I Need to Testify in Court if I am Represented by an Attorney?
It depends. If the divorce is not being contested and your spouse does not file an answer within 30 days from the date of service, then we can get you divorced by filing a Motion for Summary Judgment with the court. If the Motion for Summary Judgment is granted, then the court will enter a divorce decree. But if you wish to testify in court, please let us know and we will make sure that you will get your day in court.
Does it Matter Who Files for the Divorce?
No. The person who files for the divorce is responsible for filing the appropriate papers, paying the filing fee and getting the hearing scheduled. However, there is no advantage to filing first.
How Long Does the Divorce Process Take?
The length of the process varies based on how long it takes to get service of your spouse and how soon the clerk schedules the divorce hearing. Generally, it should take approximately 60 days after the complaint is filed. We know that you are ready to move on with your life. Thus, we strive to get our clients divorced as expeditiously as possible in each and every case.
What is the Effect of a Divorce?
There are many important effects of a divorce. First, the entry of a divorce cuts off your right to alimony and property division. If those claims have not been resolved in a valid and binding Agreement or properly filed with the court prior to the entry of the divorce judgment, they are lost forever. The loss of those claims can be devastating. If you have a claim for alimony or if you or your spouse acquired property during the marriage (house, cars, bank accounts, retirement), you need to consult an attorney to protect those claims. Second, the entry of a divorce changes your tax filing status. Third, the entry of a divorce enables you to remarry. Fourth, the entry of a divorce cuts off your rights to inherit from your spouse. Fifth, it can alter the way your house is owned if you own a house with your spouse. Although it is sometimes possible to file and obtain your own divorce decree, it never hurts to schedule a consultation by clicking here and make sure that you are going down the right road before you decide to file your own case.
How Do I Change My Name Back?
You may include a request to change your name in your divorce complaint. The name change can be included in the divorce judgment. You cannot change your name to any name in this process. You may resume your maiden name. You may also resume a former married name under certain circumstances.
What About Custody, Child Support, Alimony, and Property Division?
These issues are discussed in other areas of our website. You may resolve these issues by agreement with your spouse, in which case you would execute a Separation Agreement. In order to be valid and binding, a Separation Agreement needs to follow certain formalities. You should consult an attorney for assistance in negotiating and drafting the Agreement. If you and your spouse are not able to agree, you can try mediation or arbitration as alternatives to court. If those options do not work for you, you will have to file a complaint seeking relief in court. Regardless of which approach you choose, you should consult an attorney first.
What is Mediation?
Mediation is when a neutral third party helps facilitate an agreement between the parties. The mediator does not make decisions. The parties make the decisions, but the mediator helps them along. You can do private mediation before or after a complaint has been filed. You can address custody, child support, alimony, and property issues in mediation. Mediation is generally less expensive and not as time-consuming as court. The parties control the outcome. The entire process can be settled in one day, and you can leave a private mediation with a binding settlement document. The process is very civil and dignified. It can set the tone for how the parties deal with each other from that point forward. If the parties are able to resolve the issues incident to their separation at mediation, typically they work together and treat each other better in subsequent dealings with children or otherwise. You do not necessarily need a lawyer for mediation, but we recommend it. A non-lawyer mediator will not know the law. Without an attorney, you could lose or waive rights you did not know you had.