North Carolina Divorce
Information and FAQ
A divorce may be granted in North Carolina based upon the
incurable insanity or mental illness of one of the spouses, or upon
the parties living separate and apart for a period of one year
without cohabitation. 50-5.1, 50-6 Residency requirements At least
one of the parties to the action for divorce must have resided in
the State of North Carolina for at least six months immediately
prior to the institution of the action for divorce. 50-5.1, 50-6
Venue An action for divorce may be filed in the county where
either party resides. 50-3
Name of court and title of action/parties A Complaint for divorce
is filed in either the Superior or District Court. The title of the
action initiating the divorce proceeding is the Complaint for
Divorce, while the title of the action granting the divorce is the
Decree of Divorce. The party filing the action for divorce is the
Plaintiff, while the other party to the action is referred to as the
Defendant.
Simplified divorce procedure If the parties are seeking a divorce
based upon the parties having lived separate and apart without
cohabitation for a period of at least one year, and the parties have
agreed to all terms of the divorce, leaving no issues to be decided
by the court, the court may grant the divorce, finding all requisite
facts from nontestimonial evidence presented by affidavit, verified
motion or other verified pleading. It shall not be necessary to
allege in the complaint that the grounds for divorce have existed
for at least six months prior to the filing of the complaint. A
party seeking to obtain a divorce under this provision may, at any
time after the expiration of 30 days from the commencement of the
action or after service of a motion for summary judgment by the
adverse party, move with or without supporting affidavits for a
summary judgment in his favor upon all or any part thereof. The
motion shall be served at least 10 days before the time fixed for
the hearing. The adverse party may serve opposing affidavits at
least two days before the hearing. If the opposing affidavit is not
served on the other parties at least two days before the hearing on
the motion, the court may continue the matter for a reasonable
period to allow the responding party to prepare a response, proceed
with the matter without considering the untimely served affidavit,
or take such other action as the ends of justice require. For the
purpose of this two-day requirement only, service shall mean
personal delivery, facsimile transmission, or other means such that
the party actually receives the affidavit within the required time.
The judgment sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent
to testify to the matters stated therein. Sworn or certified copies
of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for summary
judgment is made and supported as provided in this rule, an adverse
party may not rest upon the mere allegations or denials of his
pleading, but his response, by affidavits or as otherwise provided
in this rule, must set forth specific facts showing that there is a
genuine issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him. 50-10, G.S..1A-1,
Rule 56
Legal separation The court may grant a judgement of separation
from bed and board (legal separation) on the following grounds: 1.
Abandonment of spouse or family; 2. Maliciously turning the other
spouse out of doors; 3. Cruel or barbarous treatment endangering the
life of the other; 4. Personal indignities rendering condition of
other spouse intolerable and life burdensome; 5. Excessive abuse of
alcohol or drugs; 6. Adultery. 50-7 Alimony Either party may be
awarded alimony upon a finding that the party seeking alimony is
dependant upon the other party for support and such an award would
be equitable. Fault of the parties as it pertains to adultery during
the marriage is considered when awarding alimony. Other factors the
court will consider in determining the amount and duration of an
award of alimony include:
1. Marital misconduct; 2. Relative earnings and earning
capacities of the parties; 3. The ages, physical, mental and
emotional health of the parties; 4. The amount and sources of income
of both spouses; 5. The duration of the marriage; 6. The
contribution of one spouse to the education, training or increased
earning power of the other spouse; 7. The extent that serving as a
child's custodian will affect a party's earning power, etc.; 8. The
standard of living established during the marriage; 9. The relative
education of the parties and the time necessary for a party to
acquire sufficient education or training to meet his or her
reasonable needs; 10. The relative assets and liabilities of the
parties; 11. Any other relevant factor. 50-16.3A
Property division The court shall divide the marital property
equally between the parties unless the court determines that such a
division is not equitable. Factors the court will consider in
dividing the marital property between the parties include: 1. The
income, property, and liabilities of the parties; 2. Any obligation
for support from a previous marriage; 3. The duration of the
marriage and the age, physical and mental health of the parties; 4.
The needs of the custodial parent; 5. The expectation of pension,
retirement or other deferred compensation rights that are not
marital property; 6. The contribution to the decation or earning
potential of the other spouse; 7. Any other factor the court deems
just and proper.
Mediation Whenever the court determines that custody is a
contested issue in a divorce proceeding, the court shall order the
parties to participate in a mediation program if one is available to
the parties.
The purpose of mediation is to:
1. Reduce acrimony that exists between the parties; 2. The
development of custody and visitation agreements that are in the
child's best interests; 3. To provide the parties with informed
choices and to give the parties the responsibility for making
decisions about custody and visitation; 4. To provide structured,
confidential, non-adversarial setting to facilitate the resolution
of disputes; 5. To reduce the relitigation of custody and visitation
disputes. 50-13.1
Child custody Custody will be determined according to the best
interests of the child. There is no presumption that one parent is
better suited to promote the best interests of the child. Factors
the court will consider in determining the child's best interests
include: 1. Acts of domestic violence between the parties; 2. The
safety of the child; 3. The safety of either parent from acts of
domestic violence of the other parent.
An order of child custody may also contain provisions for
visitation rights for any grandparent of the child. 50-13.2
Child support Either parent may be ordered to pay child support
in such amounts reasonable for the health, education, and
maintenance of the child, after consideration is given to the
estates, earnings, conditions, accustomed standard of living of
child and parents, child care and other related issues.
North Carolina has enacted guidelines which establish the amount
of support presumed to be correct. The court may deviate from the
guidelines however, upon a finding that the application of the
guidelines would be unjust or inappropriate under the particular
facts of the case. If the court does deviate from the guidelines, it
shall state its reasons for doing so in its order.
The court shall also order a party to provide health insurance
for the child if such insurance is reasonably available. 50-13.4,
50-13.11
Name change Either party may petition the court to permit that
party to resume the use of a former or maiden name. 50-12
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