Family: Separation and Divorce in North Carolina (FAQs)
Authored By: Legal Aid of North Carolina
My spouse and I have just split up. Do I have to do something to get a “legal separation?”
No. In NC as long as the two of you are living in separate residences and at least one of you intends the separation to be permanent, you are considered separated.
My spouse left and I am stuck with all of the bills. Is there anything I can do to get him/her to pay them now?
Maybe. In a case like this where you need immediate money from your spouse and he/she is not cooperating, you should speak with an attorney. You may be able to file an action for post-separation support, however you have to meet certain criteria and that type of case generally requires an attorney’s assistance. Additionally, most things that go through the Court are not “immediate;” in other words, you would not get an order and get money from your spouse that day or maybe even that week or month. If you need money immediately, you may check with local social services offices or charitable organizations to see if there is any temporary assistance available. If you have children in your care, you can seek child support through your local child support enforcement agency.
When can I get a divorce?
After one year of separation. In NC you must be separated for at least one full year before you obtain a divorce.
During the one year waiting period to get a divorce, am I responsible for bills my spouse incurs or am I entitled to any property he/she may obtain during that time?
Probably yes, to some extent. However, property acquired and debts incurred during the separation are treated differently than the property and debt accumulated while together during a marriage. If you know your spouse is likely to run up significant debt and try to leave you with it, you should speak with an attorney for additional advice on how to limit your liability.
My spouse and I are separated but not divorced yet. Can I date other people?
This is a difficult question to answer. Generally, if you have children together or have significant property and/or debts to divide and you anticipate your spouse being uncooperative or even difficult, you may want to be careful about dating during separation, as your doing so may be brought up in a later custody, equitable distribution (property division), or spouse support case in Court. You cannot marry until the final divorce.
We have separated and I know I can’t get a divorce until it’s been a year, but we can’t agree on the kids now. Do I have to wait a year to file for custody?
No. If you are living apart and cannot agree on custody and/or visitation, you can file a custody action with the Court if you meet the requirements for filing custody. You should consult with an attorney or see if there are any free custody clinics in your area.
My spouse is telling me that all of the property we got during our marriage is his/hers. Most of our things are in his/her name. Is what he/she is telling me true?
Generally, property acquired during the marriage is considered “marital” property, regardless of whose name is on the title. The same is true with debt. The law presumes that marital property and debt is to be divided equally. Whether the police would help get the property back for one spouse, however, is another story. Police tend to shy away from property disputes, leaving that for the Courts. If you have specific issues with property and need advice, you should speak with an attorney.
What do I do if I do not know where my spouse is?
If you cannot find where your spouse is located you may need a lawyer because this will complicate your case.
If you cannot find out where you spouse is, you can try to mail the papers to your spouse at the must recent address you have. You should send the divorce papers by certified mail, return receipt requested. Your spouse must sign the post office receipt and return the form to you. Certified mail is not enough.
If you cannot find your spouse you can publish a notice in the newspaper. The notice must comply with specific rules. You should contact a lawyer if you need to publish a notice in a newspaper.
How much does it cost to get a divorce?
Call the clerk of court in the county where you will file to confirm the cost of filing a divorce.
You can also file without paying court cost if you are unable to. The court has a specific form that you can complete if you think you meet the requirements of filing without paying court costs.
How long does it take to get divorce?
Once your spouse is served, a 30 days waiting period begins. If there are issues in dispute the case may take longer.
What if there is domestic abuse?
You should talk to a lawyer if your spouse has abused you. Call the local DV shelter for advice and supportive services if you are a victim of domestic abuse.
What if my spouse and I disagree about bills or custody of the children?
If there are children of the marriage or property that needs to be divided you should consult with a lawyer. The court can enter temporary orders for support or custody but you must file the correct papers.
Can we resolve problems about bills, property and custody among ourselves?
You should make a list of all things you need to decide. This can include payment of bills, distribution of property and even custody of the children. If you can agree you should prepare a written agreement signed by both spouses. If you cannot agree on how to solve the problems, you need to talk to a lawyer.
What does it mean that the divorce is final?
A divorce is final when the judge has entered an order about the divorce. The order is called a decree.
The order will state that the marriage is ended. The judgment is effective and the marriage ends from the time the judge decrees the divorce in open court.
A divorce decree may also include the resumption by wife of maiden name, matters dealing with equitable distribution and alimony claims and custody of children.
What if I do not agree with the divorce order?
Unless the court changes the divorce order, you must follow it. If you do not follow the order, the Court can penalize you for disobeying the order. You can appeal but strict rules apply to an appeal. You will need to talk to a lawyer.