North Carolina Divorce FAQ

Basic Questions

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

No. North Carolina does not allow common law marriages. In North Carolina, you must either be solemnized as husband and wife in front of an ordinated minister of any religious demonization, minister authorized by a church, magistrate, or in accordance with any solemnization recognized by any religious demonization, or federally or state recognized Indian Nation or Tribe.

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Can I get an annulment in North Carolina?

There are only a certain limited circumstances in North Carolina that would enable a party to obtain an annulment. If the parties are nearer in relation than first cousins or between double cousins, you may petition the court for an annulment. If one of the parties were married and are less than 16 years of age then an annulment can be considered, if there is no child or the female is not pregnant with child.

Additionally, if either party is already married (i.e. bigamy) or if either party is impotent at the time of marriage, annulment can be considered. Further, if one of the parties to the marriage were incapable of agreeing to marry (i.e. coercion or do not understand) then an annulment may be obtained.

Finally, if a female lured the male into marriage by stating that she was pregnant; the parties separated within 45 days of marriage; and have been separated for one year then the male can obtain an annulment if a child has not been born within 10 lunar months of the date of separation.

It is important to speak to an attorney about the specifics of your case to determine whether or not an annulment is a viable option.

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Does North Carolina grant divorces based on marital fault?

North Carolina is a no-fault divorce state. North Carolina does consider fault in other circumstances however (i.e. divorce from bed and board and alimony).

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Do I really need to hire an attorney?

You can represent yourself in court but will be expected to follow procedure just as a lawyer would. You will not receive a break from the court for your inexperience so self representation in a contested divorce is extremely risky and not recommended.

If your divorce is uncontested, hiring a lawyer is not always essential. The self-serve center has forms that individuals can fill out and apply for a divorce. However, you should see a lawyer prior to filing for divorce to make sure there are no other viable claims that you wish to pursue.

In North Carolina, if you are granted a divorce (i.e. the judge signs the divorce papers) then your claims for alimony and equitable distribution are barred. You need to consult with a lawyer to make sure that you understand your rights on the issues of alimony and equitable distribution prior to filing for divorce.

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What are the grounds for divorce in North Carolina?

In North Carolina, the grounds for divorce are that the couple must have lived separate and apart for one year and that one party must have resided in North Carolina for six months prior to the filing of the action.

You can also apply for divorce on the basis of incurable insanity. This ground is not often used due to the fact that you have to live separate and apart for three years and you need proof of incurable insanity.

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Children, Support, and Property

What if my wife tries to move the kids out state?

If there is no custody order or pending custody case, then it is hard to prevent a parent taking a child out of state. This is because both parents have equal rights to the child. If there is an imminent threat to the child or they are taking the child out to evade jurisdiction, then you can try to get an ex parte order granting you custody until a judge can determine custody.

If there is a pending custody action or a custody order and they try to take the child out of the state, you can contact that state’s local law enforcement to get them to enforce the order and help you return the child.

In North Carolina, there is a law that makes it a crime if a person takes the child out of state with the intent to violate a court order.

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Do I need to use a Guardian ad Litem/Custody Evaluator?

No, a custody evaluator and/or a Guardian ad Litem are not required.

A Guardian ad Litem is an attorney that is appointed to be the child’s attorney and speak on behalf of the child’s best interests. They speak to the child and advocate for what the child wants in terms of custody and speak to the Judge on their findings. A Guardian ad Litem is not necessary but is a good tool to use if you feel that your child’s voice is not being heard and you feel that the other parent is manipulating the child.

The judge can appoint these individuals on their own motion or you can petition the court to appoint one on behalf of your child.

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When can I modify custody?

In order to modify a permanent child custody order, you must first prove there has been a substantial change of circumstances that affects the child and has occurred since the date of the initial order. This substantial change of circumstances can be either a positive change or a negative change, but it must affect the child. After you have met that burden, the court then determines what is in the best interest of the child/children.

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Can a parent refuse to allow visitation if child support is not paid?

The appropriate remedy for someone who does not pay their child support is go in front of a judge and have the judge determine the appropriate solution.

If the court initially ordered child support to be paid, then the appropriate remedy is to file a Motion for Contempt for their failure to pay the required child support.

If the child support was an agreement between the parties and was not incorporated into a court order, then you would have to Motion the Court to require the party to pay child support.

One should not refuse visitation with the parent based on the fact that child support is not paid. If custody and support were ordered by the judge, and you refuse visitation, you may get into a situation whereby you have both violated the order of the court (one for child custody and the other for failure to pay child support).

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If both parents share custody does anyone pay child support?

It depends on the parties’ incomes, who pays the health insurance, child care costs, and other expenses on behalf of the child. It also depends on how many overnights each party gets with the child.

In order to determine if either party has to pay child support one should see an attorney who can apply your specific facts to the situation and see if child support is an option.

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What is joint custody? What is sole custody?

Joint physical custody is the sharing of the children between the parties. Sole physical custody is whereby one party gets custody of the children for a significant period of time. You must be careful to clarify if you are discussing physical or legal custody.

While physical custody relates to where the children are staying, legal custody is the ability of the parties to make important decisions for the children (i.e. education, religion, medical, etc.).

Joint legal custody is where the parties both have decision-making authority and must agree with one another.

Sole legal custody is where one parent has the authority to make these decisions on their own.

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Who will get custody of our child?

It depends. In North Carolina child custody is determined by using a standard whereby the judge will determine the best interest of the child.

The judge looks at every relevant factor that has to do with the children i.e. the stability of the parties, the living situation of the parties, who encourages the child in educational endeavors, and every other factor that has to do with the children.

While parties can contract outside of the court as to who has custody of the children, the court always has the opportunity to come in and determine the best interest of the children.

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Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

In North Carolina, support, custody, alimony and property do not have to be decided before the divorce is final. However, if you want to preserve your claim to alimony and equitable distribution, you need to file these claims with the court prior to the Judgment of Divorce is granted.

If the judge signs the divorce prior to you asserting either of these claims, you will be barred from later bringing these claims in front of a judge. Both equitable distribution and alimony do not have to be decided prior to a Judgment of Divorce, they merely have to be pending.

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Can I get maintenance or will I have to provide maintenance to my spouse?

In a divorce action alone, it is merely the legal ending of your marriage.  An Absolute Divorce action does not decide the issue of maintenance. If you want to add the claims for post-separation support and alimony, you can, but an Absolute Divorce action alone is not enough.

In North Carolina, alimony and post-separation support are based on whether you can prove that you and/or your spouse are dependent and whether you and/or your spouse are considered the supporting spouse. A family law attorney would have to look at the facts of every case to determine whether or not support is a viable claim.

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Divorce Procedure

How and where is a divorce complaint filed?

The complaint is filed with the Clerk of Court once the form is completed and the required fee is paid. The complaint merely states what you are asking and why (i.e. an Absolute Divorce, the fact that the parties have been separated one year, and one of the parties has lived in North Carolina for at least six months).

In the complaint you must also state whether or not there are children born to the marriage. If there are, you need to list their names in the complaint. Along with the complaint is the summons, which has the other party’s address on it. The summons merely states to the other party that an action has been filed against them and they are required to answer.

You need to make sure that you have additional copies of the summons and the complaint. While the court keeps the original, you need extra copies to be able to serve the opposing side with the documents, as well as a copy for your records.

Also, if you believe service is going to be an issue, I would make sure you have plenty of summons (at least four extra) signed by the Clerk of Court. That way, you have multiple originals to attempt service. While you only need a copy of the complaint, you need an original summons to be given to the opposing party upon service.

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What forms do I need to file for a divorce in North Carolina?

In order to file for divorce, you need a completed summons and a completed and verified complaint. In addition there is a fee that needs to be paid to the Clerk of Court. Please keep in mind there are additional forms that are required after the divorce has been filed (i.e. a Judgment of Divorce).

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After I file for divorce, do I have to continue to live in North Carolina?

It depends. If both parties live in North Carolina and the other party stays in North Carolina, then you can leave the state and still have North Carolina retain jurisdiction over the divorce. If both parties reside in North Carolina, but different counties and you (as the plaintiff) leave the state, your spouse could petition the court to remove the case to the county where he/she resides.

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How long do I have to live in North Carolina to obtain a divorce?

In North Carolina, one party has to reside in North Carolina for six months prior to the filing of the complaint. Therefore, as long as your spouse lives in North Carolina for six months and intends to remain in North Carolina, you do not have to live in North Carolina to obtain a divorce.

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Do I have to go to court?

It depends. In some counties in North Carolina, there is the opportunity to get divorced without going to court. In Mecklenburg County, for example, as long as all the procedures have been met (i.e. six-month residency, one-year separation, service of the opposing party, and no issues of material fact), you do not have to show up for court.

In other counties, the court takes the testimony of at least one of the parties to determine whether an Absolute Divorce is appropriate.

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When can I file for divorce in North Carolina?

In North Carolina, in order to file for an Absolute Divorce you must wait until you and your spouse have been separated for one year and one party must have resided in state for six months prior to the filing of the action.

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