One of the most common questions we receive is “how do I get a divorce?”
In North Carolina, the process to finalize your divorce is fairly easy and straightforward. It’s everything that happens BEFORE you get divorced that is difficult.
Getting a divorce is a big deal, and there are lots of legal implications involved – many of which you probably aren’t even aware of. Here are just a few of rights you will lose when you finalize your divorce:
- You will lose the right to request alimony from your spouse.
- You will lose the right to a share of your spouse’s retirement account.
- You will lose the right to claim an elective share in your spouse’s estate, should they pass away.
- You will lose the right to inherit any property from your spouse, even if there was a valid will or revocable trust in place before the divorce.
- You will lose the right to have a court divide up debts that your spouse may have incurred in your name.
- You will lose the right to be covered under the health insurance policy of your spouse.
- You will lose the right to serve as personal representative of your spouse’s estate.
- You will lose the right to seek post-separation support in a court of law.
And there are many more rights that you will give up when you get divorced. To many people, these aren’t a big deal. But if you haven’t properly thought through your divorce and the actual implications of getting a divorce, these may be a very big deal.
So How Do You Get a Divorce In North Carolina?
So let’s assume you have thought through these issues, or maybe you even have a separation agreement in place, and you are ready to move forward with your divorce.
What do you do?
Filing for divorce in North Carolina is a fairly straight-forward process, but if you don’t know what you are doing it is easy to mess up.
First things first, you need to make sure that you have met two criteria BEFORE you file for divorce.
- You and your spouse must have been legally separated for at least one year on the day that you sign your divorce documents.
- You must have been a citizen and resident of North Carolina for the past 6 months (and intend to remain a resident moving forward).
Each of these criteria could be the subject of a blog post in and of itself. But without going into all the intricacies right now, just understand that these are the requirements to file for divorce in North Carolina.
However, I will say that…
LEGAL SEPARATION MEANS YOU MUST RESIDE IN A DIFFERENT RESIDENCE THAN YOU SPOUSE. YOU CAN’T LIVE IN DIFFERENT BEDROOMS! YOU MUST EACH HAVE YOUR OWN ADDRESS.
Ok. Assuming you meet these criteria, you must draft a complaint for absolute divorce that contains all the pertinent language. Here is a sample complaint if you are feeling dangerous…
Plaintiff, complaining of defendant, alleges:
- Plaintiff is a resident of ____ County, North Carolina, and has been a citizen of North Carolina for more than six months next preceding the commencement of this action.
- Defendant is a resident of North Carolina.
- Plaintiff and defendant were married on ___________ and thereafter lived together as husband and wife.
- Plaintiff and defendant separated on ____________. At the time of their separation, the plaintiff intended to end the marriage.
- Since their separation plaintiff and defendant have lived continuously separate and apart and have at no time resumed their marital relationship.
- The parties have ______ minor child(ren): _____, born ________, and _______ born _________.
- No children were born of the marriage.
- The children born of the marriage have all reached the age of majority.
- Plaintiff desires to resume use of [her maiden name, surname of prior deceased husband, surname of prior living husband (if children have that husband’s surname).]
WHEREFORE, plaintiff prays the Court as follows:
- That the bonds of matrimony existing between plaintiff and defendant be dissolved and that plaintiff be granted an absolute divorce;
- That Plaintiff change her name to ____________, her [maiden name, etc.]
- For such other and further relief as to the court may seem just and proper.
When you file for divorce, you must also provide the clerk with a summons and a domestic civil cover sheet. The filing fees are currently $225 (as of 2019), which you will pay when you file the paperwork.
After you have filed this paperwork, you must “serve” your spouse. There are two primary ways to serve your spouse in North Carolina.
- You can take the paperwork to the county sheriff and they will serve your spouse. This costs $30, but it is a sure-fire way to make sure it gets done correctly.
- You can send a copy of all the paperwork to your spouse via certified mail, return receipt requested. This only costs $5-6 (or whatever it costs to mail a certified letter), but you will be responsible for filing an affidavit of service along with the green card you get back in the mail once your spouse has received the documents.
What next? Now you wait.
Your spouse has 30 days from the date that you “serve” them with the paperwork to file a response. If they want, they can ask for a 30-day extension to file a response (giving them 60 days total to respond).
After the time for them to respond has expired, you have three choices for how to finalize your divorce.
- You can file for a clerks divorce. This is the easiest method, but also requires a good understanding of local practice in your county. We don’t recommend this unless you know what you are doing.
- You can file a “summary judgment” if your spouse did not respond and request a hearing. Again, this requires some know-how on your part. Since you will need to go to the divorce hearing anyway, we recommend that you follow choice #3.
- You can file a notice of hearing for your divorce, show up and give testimony, and the judge will sign your divorce judgment.
Most people who choose to represent themselves will go with choice #3. In Wake County, divorce hearings are held every Friday. Attorney hearings start at 9, and pro se divorces (like yours) start at 10.
You will be responsible for bringing your own divorce judgment for the judge to sign, and you will need to testify that you meet the legal requirements for a divorce. In addition, you will need to mail a copy of the notice of hearing to your spouse, even if they haven’t responded to your original complaint.
Once the judge signs your divorce judgment, you will need to mail a copy to your spouse, and file proof that you have done so with the clerk.
Some Nuances to Getting Divorced in North Carolina
There are a couple of other things that you should be aware of if you are looking to get a divorce.
First, if you are requesting a name change (i.e. you want to go back to your maiden name), you must include that request in your original divorce complaint. If you don’t, then you can complete a form after your divorce is granted and ask the clerk to have your name changed. A judge will not grant your request for a name change unless the request is included in the complaint.
Second, you must file a special affidavit letting the court know that your spouse is not in the military. If they are in the military, then they are entitled to special rights. This is a relatively new requirement that was just started several years ago. If your spouse files an answer to your complaint, you do not need to complete this affidavit.
If all of this has you completely overwhelmed, we are happy to assist you with the filing of your divorce. All you need to do is pay a fee (payment plans are available), the filing fees, and sign the divorce complaint that we will draft. Assuming there are no problems, we will mail you your divorce judgment within 2-3 months after everything is finalized.
Finally, remember that by finalizing your divorce, you are giving up substantial legal rights.