Q2. What do I have to prove or do to obtain a divorce?

Q3. Do I have to prove fault to obtain a divorce?

Q4. If my spouse agrees to the divorce, do I still have to file an actual lawsuit?

Q5. What if the divorce is contested?

Q6. What about other issues like alimony, property division, child custody, and child support?

Q7. Do I have to go to court to obtain a divorce or can my attorney go for me?

Q8. How long does it take to get a divorce?

1. How long do we have to be separated before I can get a divorce?

     Pursuant to NC Gen. Stat. §50-6, before either party can file for divorce, the parties must be living in separate residences for more than one year and one of the parties must have resided in North Carolina for at least six months prior to filing a lawsuit for divorce. This is important, especially if you are living in North Carolina and your spouse has left the state—as long as you have lived here for six months and you have been separated for over a year, North Carolina will have proper jurisdiction to enter your divorce decree.

2. What do I have to prove or do to obtain a divorce?

     There are only two elements for a claim of absolute divorce: 1) separation for one year and 2) six months residency in North Carolina by either party prior to filing the lawsuit. In addition, there are several other requirements to be met before you can actually obtain the divorce decree from a judge, namely: a) verifying the Complaint; b) paying filing fees; c) serving the papers on your spouse in accordance with NC Gen. Stat. § 1-1A Rule 4; d) waiting the requisite number of days before calendaring your hearings for divorce; e) meeting all statutory notice requirements when calendaring such hearings; and f) attending, or having your attorney attend, the hearing in front of the judge to affirm the allegations in your Complaint.

3. Do I have to prove fault to obtain a divorce?

     Many states have a fault provision in their elements for divorce. However, North Carolina is a “no-fault state” which means you need not prove marital misconduct, domestic violence, abandonment, etc. in order to obtain a divorce. The only two elements for obtaining an absolute divorce are 1) separation for one year and 2) six months residency in North Carolina by either party prior to filing the lawsuit. But see question 2 above for further procedural requirements

4. If my spouse agrees to the divorce, do I still have to file an actual lawsuit?

     Yes. While most other issues incident to the dissolution of the marriage can be resolved by a Separation Agreement, mediation, arbitration, etc., it is necessary to file a lawsuit for divorce and obtain a decree from a judge. But certainly, if your spouse is agreeable to the divorce, then serving the divorce papers on your spouse may be easier than in most cases, you may be able to reduce the waiting period before getting your divorce hearing date, and the entire process may be smoother and less emotional than in most cases.

5. What if the divorce is contested?

     The terms “uncontested divorce” and “contested divorce” are misleading and deserve further explanation. As long as all the elements and requirements for divorce have been met (see Question 2 above), then the other spouse cannot contest the divorce, even if, for example, the plaintiff committed adultery or acts of domestic violence. The only issue that is sometimes disputed is the date of separation, but even then, the judge will simply hear testimony on both sides and simply make a reasonable decision based on the credibility of each party’s evidence.

     Contested divorces truly do not involve a claim for divorce at all, but rather other claims that can be contested, such as post separation support, alimony, child custody, child support, and property division. Divorce is a separate claim and can be granted independent of, and even prior to, the resolution of these other claims. Therefore, such cases are more properly called contested cases, not “contested divorces.”

6. What about other issues like alimony, property division, child custody, and child support?

     A claim for divorce is separate from claims for alimony, property division, child custody, and child support and can therefore you can be granted a divorce decree independent of, and even prior to, the resolution of any of these other claims. This is a good rule, since these other claims are often more complicated and time consuming than the mere divorce. But note that claims for property division, post separation support, and/or alimony must at least be pending at the time the divorce is granted, or else they are barred from ever being heard.

7. Do I have to go to court to obtain a divorce or can my attorney go for me?

     You can appear in court if you want to, whereby you would simply be called to the stand to testify to the several statements listed in the divorce complaint. However, because obtaining a divorce is a relatively simple matter if all elements and requirements have been met, most people have their attorney go on their behalf. This is possible because the Complaint and other documents are verified and notarized, which means they are taken as if you were there testifying in person.

8. How long does it take to get a divorce?

     This is a very broad question. First you must consider the entire process from the first day you meet with us until the day the judge signs the divorce decree. Here is a general rule of thumb for estimating the time frame. After the initial consult, once we have received the necessary retainer and signed fee agreement, it may take us 2-3 weeks to begin working on your case and draft the necessary documents, depending on our current case load and court obligations. Once the documents are complete and you have reviewed and signed off on them, we will file the lawsuit at the courthouse. But filing is just the first step. The next critically necessary step is serving the papers on your spouse in accordance with NC Gen. Stat. § 1-1A Rule 4 by such means as certified mail, Sheriff, or publication in the newspaper under special circumstances.

     Getting divorce papers properly served can take as little as one week or as long as several weeks or months. After proper service is obtained, then we will schedule the hearing date within approximately 30-45 days (depending on the county and the court’s current case load). At the hearing date, if and when your case is finally called and heard, the Judge will enter the divorce decree. But there is a small chance that your case will not be called that day because another case’s trial is suddenly held over or there are too many motions ahead of yours. In that event, your hearing will be rescheduled to the next available court date.

NOTE: Every case is different and in addition to the time line detailed above, other issues may be a factor that cause delays. For example, for one client, we may need to spend extra time locating a valid address for the spouse for proper service of the papers, which may even include employing a private investigator. For another client, after meeting with them in length, we may discover that there are other issues such as child custody, domestic violence, alimony, or property division that also need to be addressed, which will take additional time and planning.