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Know the Laws: North Carolina

UPDATED August 17, 2016

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This section has information about divorce in North Carolina.

Basic info

back to topWhat are the basic steps for filing for divorce in North Carolina?

The following steps are meant to be a guide in the divorce process but you should talk to a lawyer to get specific advice for your situation:

  • You must meet the residency requirements of NC, which means that one spouse has lived in NC for at least six months prior to the filing.
  • You and your spouse must have been living separately for one year (assuming you are not filing under the insanity ground).
  • After you and your spouse have been separated for at least one year, you or your lawyer file a divorce complaint and summons with the clerk of court in the county of your residence.
  • The divorce complaint and summons must then be served (delivered) to your spouse,* either by the sheriff or by certified mail.**
  • If your spouse disagrees with anything in the divorce papers, then s/he will have the opportunity to file papers telling his/her side. This is called “contesting the divorce.” If s/he contests it, then you will have a series of court appearances to sort the issues out. If your spouse agrees with everything, then s/he could sign the papers and send them back to you and the court.  If your spouse agrees with everything and signs the papers, this is called an “uncontested divorce.” Also, if a certain period of time passes and your spouse does not sign the papers or file any papers of his/her own, you may be able to proceed with the divorce as an uncontested divorce anyway.
  • Afterwards, you will have a hearing in front of a judge. The judge has to enter a judgment declaring you divorced. You will be officially divorced when the judge signs the judgment and the clerk file stamps it.
The divorce is only one part of the process. It is just the judicial order that ends your marriage. The complexity of a divorce case arises in deciding other issues such as child custody, child support, division of property, and alimony. (But you must file a claim and preserve your right to property BEFORE a divorce is granted). These issues are resolved either through negotiation between you and your spouse (separation agreement) or through a court process.

* NCGS § 50-8
** NCGS 1A § 4(j)(1)

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back to topWhat are the legal effects of a divorce?

There are many effects to the entry of a divorce:

  • Once you are divorced, you cannot go back and ask for alimony or division of property.  This must be resolved as part of the divorce and properly filed with the court prior to the entry of the divorce judgment.  You should consult an attorney to protect these rights. See our NC Finding a Lawyer page for legal referrals.
  • It changes your tax filing status.
  • It enables you to remarry.
  • You can change your name. In your complaint for divorce or in your answer to your spouse’s complaint, you may petition the court to change your name to either your maiden name, the last name of a prior deceased husband, or the last name of a prior living husband if you have children who have that husband’s last name.
  • It cuts off your rights to automatically inherit money or property from your spouse upon his/her death.
  • If you own a house with your spouse, it can alter the way your home is owned depending on the division of property agreement or depending on the court’s order.

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back to topHow will custody, child support, alimony and property division be decided?

The judge will not address these issues at time of divorce.

Property distribution and alimony need to be filed before divorce or resolved by separation agreement before divorce.  You should consult an attorney for assistance in negotiating and drafting an agreement.  See our NC Finding a Lawyer page for legal referrals.

If you and your spouse are not able to agree on these issues, some people try mediation or arbitration as alternatives to court - however, mediation is generally not recommended for domestic violence victims.   If those options do not work for you, you will have to file a separate complaint seeking relief in court prior to the divorce and the judge will likely make the final decision on these issues.  Regardless of which approach you choose, you should consult an attorney first.

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Divorce requirements in North Carolina

back to topWhat are the reasons I can get an annulment?

Although many people believe that an annulment is based on the length of the marriage, how long the couple has been married is not the determining factor about whether or not a spouse can get an annulment.  You can read through the reasons for an annulment on this government website. You can read the language of the law regarding the grounds for getting an annulment on our NC Statutes page. 

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back to topWhat are the residency requirements to file for divorce in North Carolina?

To file for divorce in NC, one spouse must have been living in North Carolina for at least six months* prior to the filing.**  It does not matter if you were married in NC or in another state.

* NCGS § 50-6
** NCGS § 50-8

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back to topWhat are the grounds for divorce in North Carolina?

North Carolina is a “no fault state,” which means that you do not have to prove that either spouse is at fault to get a divorce.

There are only two grounds (reasons) for divorce in NC:

  1. Separation for one year,* or
  2. Incurable insanity of one spouse and separation for three years.**

The majority of marriages are dissolved based on the ground of separation for one year. In order to get divorced under this ground, you must have lived in separate residences for one year and at least one spouse must have had the intent to remain separate and apart. You do not need to file for legal separation.  Legal separation happens once a husband and wife begin living separate and apart (in separate residences).

Note: North Carolina does provide for a legal separation called “divorce from bed and board,"*** but this is rarely used in North Carolina.  Although it is called “divorce” from bed and board, it is addressed before a divorce and it does not actually dissolve (end) the marriage.  It is a fault-based action, usually brought by an injured spouse to get the court to order the other spouse out of the residence.  You must establish at least one of the following fault grounds: abandonment (where one spouse leaves the marital residence without justification or consent of the other spouse and has no intent to return), malicious turning out of doors (your spouse threw you out), cruel or barbarous treatment (such as domestic violence), indignities (a pattern of behavior that causes it to be intolerable to live with the spouse), excessive use of alcohol or drugs to the point where you cannot tolerate living with your spouse, or adultery (when your spouse “cheats on you”).  For more information on “divorce from bed and board,” please talk to a lawyer who specializes in divorce. Go to NC Finding a Lawyer.

* NCGS § 50-6
** NCGS § 50-5.1
*** NCGS § 50-7

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back to topWhere can I find additional information about divorce?

We hope the following link to an outside source may be helpful.

Legal Aid of North Carolina has a do-it-yourself divorce packet, which includes divorce forms that you might need, an explanation of the divorce process, and a glossary of terms you might encounter if you choose  to get divorced.  You should not use this packet, however, if you wish to get spousal support or divide property between you and your spouse.

WomensLaw.org is unrelated to the above organization and cannot vouch for the accuracy of its site.  We provide these links for your information only.

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Thank you to attorney Lisa M. Angel from the Rosen Law Firm for her assistance with this page.

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