This article sheds light on the “legal separation” and “divorce” processes in North Carolina. Divorce is one of the most important and traumatic events in the lives of those who go through one. But if you learn about how the process works, legal separation and divorce can be much less traumatic by pulling back the curtain and removing the uncertainty about what it involves.
First of all, it’s always important to understand which statutes govern an issue because that is the state legislature’s guidance on how we handle a given situation. Divorce cases in North Carolina are governed by N.C.G.S. 50-6, which is entitled, “Distributon After Separation of One Year on Application of Either Party.” There are several other statutes that provide guidance in divorce cases, as well as a broad body of court cases that create additional law that we must follow. But this statute hits on the main points to keep in mind.
Am I Legally Separated?
Before you can get divorced in North Carolina, you must become legally separated. There is much confusion about what it takes to actually be “separated,” though. Legal separation requires the existence of two facts. First, you must be physically separated, which simply means living separate and apart from one another. Second, one or both spouses much have an intention to end the marriage. So there is a physical piece and a mental piece, and both must be in place in order for there to be a legal separation.
How about an example of only one piece being in place, but not the other. Let’s say husband and wife plan to move to a different city or state. Wife moves with the kids in August in order to get them enrolled in their new school, but Husband remains for a few months so that he can keep working until his annual bonus is paid in December. Here, the parties are physically separated, but neither intends to end the marriage. If Husband later finds himself involved with a new girlfriend and decides he wants a divorce, then the parties have become separated when the second piece (his intention) arises.
On the other hand, let’s say that Husband and Wife live together, and they want to get a divorce, but their budget is too tight to secure a separate residence for one of them. This is a very common problem because the parties intend to separate, but they are not yet physically separated. Hence, there is not a legal separation until one party moves out of the house. Something must be done quickly, however, because this will not be a happy home life for either of them, and if they have kids then their unhappiness will almost certainly find its way into the kids’ well-being, as well.
What If My Spouse Will Not Leave the House?
Sometimes when spouses want to separate, but neither wants to give up their residence in the marital home, a great deal of friction presents itself. There are good ways and bad ways to handle this very common situation.
A bad way to handle it is when one spouse calls the police and reports that the other has committed an act of violence that he or she did not actually commit. The police commonly come to the home and escort the alleged offender out, and the “victim” spouse usually gets to keep the home. At least until the Judge finds out what actually happened.
Another bad way to handle it is when both spouses simply dig in with great resolve and refuse to leave. This doesn’t solve problems, and it is likely to create them. Whether they simply live a life of unhappiness, or they manifest their bitterness by one spouse becoming violent, or their children suffer the consequences of stress, anxiety and depression.
The best way to handle this situation is for both parties to hire a reasonable, cool-headed attorney so that the attorneys can talk with each other and work out an arrangement that gets the parties separated without the possibly severe negative consequences. Then everyone can approach the situation with calm heads and work toward a workable solution, not to mention the divorce, itself.
How Long Must I be Separated to get a Divorce?
You must be legally separated for one full year in order to start the divorce process. This means if you separate on August 1 of one year, then you cannot start the divorce process until at least August 2 of the following year.
The divorce process involves the filing of several rounds of documents with the clerk of court. This includes a new lawsuit, which specifically requests the entry of a Divorce Judgment. The filing spouse must have this lawsuit served on the other party, which must be done by certified mail with return receipt or otherwise by a sheriff’s deputy. If an attorney is involved, then sometimes he or she can avoid this formal service requirement by having the non-filing party sign a special form.
Ultimately, a Judge will sign a Judgment of Absolute Divorce. When a divorce is done with an attorney, neither party actually needs to appear in Court.
How Long Does the Divorce Lawsuit Take?
We know that a divorce involves a separate lawsuit in most cases. Once the divorce lawsuit is filed, which can happen beginning 1 year + 1 day after the separation begins, it normally takes about 2 months for the divorce to be finalized. This might sound like a long time, but it’s necessary to let certain required notice periods expire. Also, the Court must schedule the divorce to be signed by a Judge, and this also takes anywhere from 1 to 3 weeks, depending on how backlogged the Court’s divorce pipeline is at that time.
When folks separate and eventually divorce, they are on an important time clock. They have until their formal divorce date (usually about 14-15 months after they become separated) to either (1) resolve their alimony and equitable distribution cases or (2) to file claims for alimony and equitable distribution in a lawsuit. If they fail to timely take one of these two steps, then they will forever forfeit their right to do so. In other words, it’s now or never when it comes to receiving alimony and dividing your assets and debts. Missing this deadline can mean your spouse walks away with most or all of the assets that you have accumulated, or it can mean that you walk away with most or all of the debts, or both!
But Wait, There’s More
As with most family law topics, equitable distribution laws cannot be reduced to a three-page article. You must consider other issues such as alimony, and even custody and child support, because they can interplay dynamically with equitable distribution. In other words, a divorce is a broad process that almost always involves multiple issues, all of which are related to one another. At the very least, consult with an experienced divorce attorney who has handled complex equitable distribution cases so that you know what is needed to resolve your case while protecting your rights and preventing you from losing significant assets in the process. You only get one trip to this well, and you usually cannot “undo” a bad agreement or a poorly planned court appearance.
As always, this article is not legal advice, and it is important that you seek the advice of an experienced divorce attorney regarding your unique facts and circumstances before making any major decisions that might impact you or your family.