FAMILY LAW DISSOLUTION

DIVORCE & SEPARATION

North Carolina has no-fault divorces which means that a spouse can divorce another spouse any time after one year and one day of physical separation. Now that same-sex marriage is legal in the United States, same-sex spouses can also get divorced in this state. The requirements are that either spouse live in North Carolina for at least six months prior to filing, that the parties be physically separated for at least one year and that at least one party wishes the separation to become permanent.

To get a divorce in North Carolina, someone must file a Complaint for Divorce and serve that Complaint and Summons on the other spouse. After the spouse responds, or after 30 days, the filing party can schedule a hearing to ask the judge to sign a divorce decree. In some counties, those decrees are signed on administrative court days. In other counties, they are typically done during calendar calls or out of session.

Getting a divorce is only one part of the process of dissolving a marriage, Often there are other issues that need to be handled including division of marital assets, spousal support, child custody and child support.  

Call: (919) 883-4900

DIVORCE: Frequently Asked Questions

My spouse and I have lived in different bedrooms in the same house for more than a year. Can we divorce?

No. North Carolina’s laws require that spouses be physically separate and not living in the same residence for at least 366 days. Living under the same roof, although in different bedrooms, does not count as separation.

How can I give my spouse notice of my divorce complaint if I don’t know where s/he is or if s/he lives in a different country?"

The attorneys at NicholsonPham have experience in serving parties who cannot be found or who live in different countries. (The rules about service in different countries depend on whether the country is a party to the Hague Convention). For defendants who cannot be found, we must show that we have tried to find the person and then serve by publishing a notice in a local newspaper.

What are the fees I must pay for my divorce?

Currently, the filing fees for a divorce in North Carolina are $225. If you are asking the court to allow you to resume your pre-marital name, you must pay an additional $10. In addition, you must serve the other person with official notice of your divorce complaint. Service by sheriff is usually $30. Certified mail (return receipt requested) is currently about $7. Finally, you will need to request a hearing for the divorce and North Carolina has a hearing fee of $20.

Filing fees and court costs are the same for a divorce, whether you are represented by an attorney, or not.

How long will the process take?

Generally, divorces that are uncontested should take around 60 days to complete.

Can I annul my marriage?

North Carolina is not Las Vegas and marriages are voided in only very limited situations. If you think you want a marriage declared void, give us a call.

Do I need a separation agreement to be officially separated from my spouse?

No. North Carolina does not require that any agreement or statement of intent be signed to start the year of separation. Instead, separation depends on the spouses being physically apart and not living together, as well as no longer holding themselves out as spouses.

Can I file for my own divorce?

Yes. Many County Clerks’ offices in the Triangle area have divorce packets that can help people file for their own divorce. If you are interested in discussing fees, call NicholsonPham for a consultation. If the divorce is uncontested and there are no issues of property or child custody, divorce representation fees can be very reasonable.

Why can’t you represent both me and my spouse if we’re in agreement for a divorce?

North Carolina rules governing attorneys prohibit that practice. Even if both people are amicable and want the divorce, the attorney who files the Complaint for one spouse cannot draft an Answer for the other spouse.

Can I change my name during my divorce?

Currently the statute is gender-specific and allows women to have more options of changing their surnames than men. However, we believe that the statute should be read in light of marriage-equality decisions. Given that, you can resume your pre-marital surname (what is generally called a “maiden name”), or retake the name of a prior deceased spouse or the surname of a living ex-spouse if you have children with that person who also use that surname.

You cannot change your entire name based on the divorce alone. If you want to change your name beyond resuming your pre-marital surname, please call NicholsonPham to discuss a name change procedure.

If I want to file separately on my income taxes, when must I be divorced?

If you are married, you can always choose to file “married, filing separately.” If you want to be single for income tax purposes, you must be divorced by December 31st of that tax year. Many counties have divorce court on the last day of the year, just to accommodate residents who want a divorce before the end of the year.