Filing for Divorce in North Carolina

Filing for Divorce in North Carolina

Getting a Divorce in North Carolina? Divorce Law Cheat Sheet for the State of North Carolina

1. What are the residency requirements for filing for divorce in North Carolina?

You or your spouse must have been a resident of the state for at least six months to file for divorce in North Carolina, and you must file in the county in which you or your spouse lives.

2. Does North Carolina have a waiting period?

You and your spouse must have lived separately for at least a year before filing for a divorce.

3. Does the state have grounds for divorce?

There is not a list of grounds for divorce in North Carolina. You and your spouse must have lived separately for at least a year. But you don’t have to find fault or irreconcilable differences to file for a divorce in the state.

You may petition the court for a divorce if you have lived separately for at least three years because your spouse is incurably insane. To be incurably insane, your spouse must have been:

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Living in or treated in an institution for mental disorders for at least three years.
Found to be incurably insane by two physicians, one from the institution and one unaffiliated with the institution.
Identified as incurably insane by a member of the institution in a sworn statement.
Examined and found incurably insane by another physician licensed in the state both during that three-year period and after you file for divorce.

If your spouse has not been in a mental institution for three years, then you must prove that your spouse was found insane more than three years before you filed for divorce, that he or she has not regained sanity at any point since then, and has been found insane by two doctors (one a psychiatrist) after you filed.

If you can’t prove either of the above two situations, you may instead show that your spouse was examined by two or more medical doctors on the staff of one of the state’s accredited four-year medical schools at least three years before you filed and found to be incurably insane. You must show that your spouse has not regained sanity during that time according to the testimony of two physicians, one of whom has to be a psychiatrist on staff at of one of the state’s accredited four-year medical schools, and one a physician practicing in the community where your spouse lives.

If your incurably insane spouse doesn’t have the means to pay for his or her care after your divorce, you will be required to pay for care for the rest of your spouse’s life.

4. How does North Carolina determine the division of property?

You and your spouse are encouraged to come up with a settlement on your own and present it to the court. If you can’t agree, the court will divide your property for you.The court will look at your marital property, which in North Carolina is any property that you and your spouse acquired while you were married, including vested and non-vested pension and retirement benefits.

Your separate property remains your own. This includes:

  • Property that you acquired before you were married.Property that you acquired by gift or inheritance.
  • Property given to you as a gift by your spouse if it was clearly intended as separate property at the time.
  • Property that you received in exchange for your separate property.
  • Any increase in value of or income from your separate property.
  • Professional licenses or business licenses.

The court will divide your marital property in whatever way it finds is most equitable, or fair. To determine what that is, the court will consider:

  • You and your spouse’s incomes, properties and debts.
  • Any support you or your spouse might owe because of a previous marriage.
  • How long you were married.
  • You and your spouse’s ages and physical and mental health.
  • Whether the parent with custody of your child should live in or own your family home.
  • What pension, retirement or other benefits you each expect to receive that are not marital property.
  • Any contributions (or lack of contributions) you or your spouse made to the acquisition of your marital property, including as homemaker, spouse, parent or breadwinner.
  • Any contribution you or your spouse made to the education or career development of the other.
  • Any clear contribution you or your spouse made toward the increase in value of the other’s separate property.
  • How easily your marital property could be liquidated.
  • How difficult it would be to separate business assets that are marital property and whether it would be better to keep them together.
  • What your taxes would look like after your property is divided.
  • Any acts by you or your spouse to maintain and expand or to waste your marital property while you are separated.
  • Any other factors that the court decides are relevant.
  • When deciding what is fair in your division of property, the court will not take into account alimony or child support. After your property is divided, you or your spouse may petition the court to modify an order for alimony or child support.

5. Does North Carolina require mediation before a divorce is granted?

Mediation is not required in all North Carolina divorce cases, but the court may order it in yours if you and your spouse can’t resolve child custody or visitation issues.

6. How does the state determine child custody?

The vast majority of parents are able to agree on their child custody arrangements without intervention or approval of the state. When a party requests a custody determination by the state the court will typically award custody to one party and visitation to the other. Custody means “control” and the parent with custody has the authority to make decisions on behalf of the child. The other parent will usually have “visitation” as deemed appropriate by the court. In some cases, the court will award “joint custody.” In these cases the judge will usually designate one parent as the primary decision maker and have the child reside primarily with that parent. The other parent will, usually, be awarded certain periods of time with the child.

In determining custody, the court is guided by your child’s best interest. It will take into account all relevant factors affecting your child’s safety and well-being, including any evidence of domestic violence. Your custody order also may include visitation rights for your child’s grandparents, if the court decides that is appropriate.

7. How does the state calculate child support?

North Carolina uses a set of child support guidelines based on the income shares model, which says that a child should receive the same proportion of parental income he or she would have received if his or her parents lived together. The worksheet uses you and your spouse’s gross incomes.

Any child support payments you or your spouse make for an existing court order or agreement are deducted from your gross income. Alimony you pay is not deducted from your gross income, but may be a consideration when looking at the final child support amount. Any financial responsibilities you have toward other children in your household who are not a part of this child support order will be subtracted from your gross income.

Work-related child care costs are added on to the basic child support amount, as is the cost of health insurance. Those costs then are prorated between you and your spouse based on your incomes.

Uninsured medical or dental expenses greater than $250 per year or other uninsured health care costs (such as orthodontia, dental care, asthma treatments, physical therapy, counseling, etc.) may be paid by either parent or both parents in whatever proportion the court deems appropriate.

Other extraordinary child-related expenses, such as the cost of special or private schools for your child’s particular educational needs or the cost of transporting your child between you and your spouse’s homes, may be added onto the basic amount and paid by each of you in proportion to your incomes.

Your physical custody arrangement will affect how your basic child support amount is calculated. You’ll use one worksheet if one of you has primary physical custody — ”your child lives with one of you for at least 243 nights a year.

You’ll use a different worksheet if one of you has primary physical custody of one or more of your children, but you share custody of one or more of your children. Parents share custody if a child lives with each parent for at least 123 nights during the year and each parent assumes financial responsibility for the child’s expenses during the time the child lives with that parent.

And you’ll use an entirely different worksheet if primary custody of two or more children is split between you and your spouse.

If you and your spouse have shared physical custody, your combined basic support obligation is increased by 50 percent and is divided between you based on your respective incomes and the amount of time your children live with each of you. After child support obligations are calculated for each of you, the parent with the higher child support obligation is ordered to pay the difference between his or her child support obligation and the other parent’s child support obligation.

The court will review your child support amount to be sure it meets your child’s needs for health, education and care, taking into account your child’s previous standard of living, you and your spouse’s estates and income, any contributions you or your spouse make toward child care or as a homemaker, and any other factors the court decides are relevant.

8. How does the state determine and calculate alimony?

Alimony is not a given in a divorce case, but you or your spouse may request it. In considering whether to award alimony, the courts in North Carolina will consider your behavior while you were married.

If you are seeking alimony but participated in an act of illicit sexual behavior during your marriage, the court will deny your request. If your spouse is seeking alimony from you and you participated in an act of illicit sexual behavior during your marriage, the court will order you to pay alimony. If you both participated in illicit sexual behavior during your marriage, it will be up to the court to decide whether or not to award alimony.
North Carolina statutes define illicit sexual behavior as acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in General Statute 14-27.1(4), which are listed here:

http://www.ncga.state.nc.us/enactedlegislation/statutes/html/bysection/chapter_14/gs_14-27.1.html

If you decide to seek alimony, the court may hear your case before it divides your property, but revisit the amount of alimony it awards after your marital property is distributed. The court also will take into account these factors in determining the amount of alimony awarded and for how long:

  • Any marital misconduct by you or your spouse (see below). This could include misconduct after your date of separation if it helps prove misconduct occurred during your marriage.
  • You and your spouse’s incomes and earning capacities.
  • You and your spouse’s ages and physical, mental and emotional conditions.
    How long you were married.
  • Any contribution you or your spouse made to the education, training or increased.
  • Earning power of the other.
  • How physical custody of your child will affect your earning power and expenses.
  • The standard of living you established during your marriage.
  • You and your spouse’s educations as well as how long it would take for you to find a job to be self-supporting.
  • You and your spouse’s assets and debts.
  • The property you and your spouse each brought to your marriage.
  • Any contributions by you or your spouse as a homemaker.
  • You and your spouse’s needs.
  • The tax consequences of ordering alimony for you and your spouse.
  • Any other factor the court decides is relevant.

North Carolina defines marital misconduct — as any of the following acts if they occurred during your marriage and before separation:

  • Illicit sexual behavior.
  • Criminal acts.
  • Abandonment of your spouse.
  • Kicking your spouse out of your home.
  • Cruel treatment that puts your spouse’s life at risk.
  • Actions that make your spouse’s life unbearable.
  • Reckless spending or concealing assets.
  • Excessive use of alcohol or drugs.
  • Failing to help support your spouse with basic necessities.

9. Is there a waiting period before remarriage in North Carolina?

No, you are free to remarry after the court delivers the final judgment ending your marriage.

FOR MORE INFORMATION

North Carolina’s state statutes are online here.

Questions and answers regarding mediation of child custody can be found here.

See here for the state’s child support guidelines.

The state’s child support enforcement web site can be found here.

Information in this article verified by:
Name: Lee S. Rosen
Years in Practice: 21
Law School: Wake Forest University
Firm: Rosen Law Firm
Concentration: Family Law
Web site: www.Rosen.com
Telephone Number: 919-787-6668

Please note: Local and state laws change constantly, therefore this information is for educational purposes only. We do our best to keep state-specific information up-to-date, but please contact us to discuss your unique situation.

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