North Carolina Divorce Law

Divorce and Legal Separation in North Carolina




Divorce and Legal Separation in North Carolina

North Carolina Divorce Basics

In North Carolina, divorce is referred to as Absolute Divorce.

Residency Requirement:

Either spouse must have resided in the State for a period of six months.

Military Personnel:

If a Plaintiff, filing spouse, or Defendant, other spouse, has resided or been stationed at a U.S. army, navy, marine corps, coast guard or air force installation or reservation or any other location pursuant to military duty within North Carolina for a period of six months prior to filing for divorce, it will constitute compliance with the residency requirement, as long as the Defendant is either served personally or accepts service, within or without the State as provided by law.

Filing:

The Plaintiff may file a Complaint for Divorce in the county where either she/he or the Respondent has resided for the prior six months.

Spouseís Name:

Any woman whose marriage is dissolved by a decree of absolute divorce may, upon application to the clerk of court of the county in which she resides or where the divorce was granted, change her name to any of the following:
  • Her maiden name;
  • The surname of a prior deceased husband; or
  • The surname of a prior living husband if she has children who have that husbandís surname.
A man whose marriage is dissolved by decree of absolute divorce may, upon application to the clerk of court of the county in which he resides or where the divorce was granted, change the surname he took upon marriage to his pre-marriage surname.

Legal Grounds for Divorce

There are only two grounds for absolute divorce in North Carolina:
      1. The husband and wife have lived separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of the spouses; or

        2. The husband and wife have lived separate and apart for one year.
    Grounds for divorce must have existed for at least six month prior to filing.

    Annulment

    In North Carolina, only a bigamous marriage is automatically void and does not require court action to make it so. A bigamous marriage is one where either party to the marriage already has a husband or wife living at the time of the subsequent marriage. This differs from a voidable marriage, which requires a court order.

    A voidable marriage requires a court order of annulment to declare the marriage void. That means the marriage is considered to have never existed. The marriage is not automatically void, but requires a District Court declaring it so. Upon application by either party to a marriage contracted contrary to the Prohibitions contained in the North Carolina Marriage statutes, the district court may declare the marriage void from the beginning.

    In North Carolina there are only certain narrow circumstances in which a marriage can be declared void. One of the following criteria must be proven in District Court to have a marriage declared void:
    • The parties are nearer in relationship than first cousins;
    • The parties are double first cousins;
    • Marriages between a male person under 16 years of age and any female, unless there is a court order as a result of a pregnancy of one between the ages of 14 and 16;
    • Marriages between a female person under 16 years of age and any male, unless there is a court order as a result of a pregnancy of one between the ages of 14 and 16;
    • Either of the spouses is physically impotent, as medically diagnosed by a doctor;
    • Either of the parties is mentally incapable of entering into a contract to marry, as determined by the court on a case-by-case basis; or
    • A marriage contracted under the representation and belief that the wife is pregnant, followed by the separation of the parties within 45 days of the marriage, where the separation was continuous for a period of one year, unless a child was born to the parties within ten months of the date of separation.
    No marriage, except for a bigamous one, which is followed by cohabitation and the birth of a child, shall be declared void after the death of either of the parties.

    Property Division

    North Carolina is an equitable distribution state. Upon application of either party, the court shall determine what is the marital property and divisible property and shall provide for an equitable distribution of that property between the parties.

    State statute defines marital property as all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property. It includes all vested an non-vested pension, retirement and other deferred compensation rights, and vested and non-vested military pensions eligible under the federal Uniformed Services Former Spousesí Protection Act.

    Divisible property means all real and personal property defined as follows:
    • All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that which is the result of post-separation actions or activities of a spouse;
    • All property, property rights, or any portion therof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including commissions, bonuses and contractual rights;
    • Passive income from marital property received after the date of separation, including interest and dividends; and
    • Increases and decreases in marital debt and financing charges and interest related to marital debt.
    Separate property is defined as all real and personal property acquired by a spouse before marriage or acquired by a spouse by bequest, devise, descent, or gift during the course of the marriage. Howe er, property acquired by gift from the other spouse during the course of the marriage, shall be considered separate property only if such intention is stated in the conveyance.

    Property acquired in exchange for separate property shall remain separate property regardless of whose name the title is in, and shall not be considered marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.

    The court shall attempt to divide the marital and divisible property equally using net value of the property. If the court determines that an equal division is not fair, the court will instead divide this property equitably, while considering the following factors:
    • The income, property, and liabilities of each party at the time the division of property is to become effective;
    • Any obligation for support arising out of a prior marriage;
    • The duration of the marriage and the age and physical and mental health of both parties;
    • The need of a parent with custody of a child(ren) of the marriage to occupy or own the marital residence and to use or own its household effects;
    • The expectation of pension, retirement, or other deferred compensation rights that are not marital property;
    • Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services, or lack therof, as a spouse, parent, wage earner or homemaker;
    • Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse;
    • Any direct contribution to an increase in value of separate property which occurs during the course of the marriage;
    • The liquid or non-liquid character of all marital property and divisible property;
    • The difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest, intact and free from any claim or interference by the other party;
    • The tax consequences to each party, including those federal and state tax consequences that would have been incurred if the marital and divisible property had been sold or liquidated on the date of valuation;
    • Acts of either party to maintain, preserve, develop, or expand, or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after the separation of the parties and before the time of distribution;
    • In the event of the death of either party prior to the entry of a property distribution order, the court will consider property passing to the surviving spouse by will or through intestacy due to the death of a spouse, property held as tenants by the entirety or as joint tenants with rights of survivorship passing to the surviving spouse due to the death of a spouse, the surviving spouseís right to claim an elective share, and property passing to the surviving spouse from life insurance, individual retirement accounts, pension or profit-sharing plans, any private or governmental retirement plan or annuity of which the decedent controlled the designation of beneficiary, or any other retirement accounts or contracts, due to the death of spouse; and
    • Any other factor which the court finds to be just and proper.
    The court shall provide for an equitable distribution without regard to alimony for either party or support of the children of both parties. After the determination of an equitable distribution, the court, upon request of either party, shall consider whether an order for alimony or child support should be modified or vacated.

    Alimony

    Either party may move for alimony. The court shall award alimony to the dependent spouse upon a finding that one spouse is a dependent spouse, the other spouse is a supporting spouse, and that an award of alimony is equitable after considering all relevant factors.

    If the court finds that the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, the court shall not award alimony. If the court finds that the supporting spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, then the court shall order that alimony be paid to the dependent spouse. If both spouses engaged in illicit sexual behavior then alimony shall be denied or awarded in the discretion of the court after consideration of all the circumstances. Any act of illicit sexual behavior by either spouse that has been condoned by the other spouse will not be considered by the court.

    A claim for alimony may be heard on its merits prior to the entry of a judgment for equitable distribution, and if awarded, the issues of amount and of whether a spouse is a dependent or a supporting spouse may be reviewed by the court after the conclusion of the equitable distribution claim.

    The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. The duration of the award may be for a specified or for an indefinite term. In making its determinations, the court shall consider all relevant factors, including the following:
    • The marital misconduct of either of the spouses;
    • The relative earnings and earning capacities of the spouses;
    • The ages and the physical, mental and emotional conditions of the spouses;
    • The amount and sources of earned and unearned income of both spouses, including earnings, dividends, and benefits, such as medical, retirement, insurance, social security or others;
    • The duration of the marriage;
    • The contribution of one spouse to the education, training, or increased earning power of the other spouse;
    • The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child;
    • The standard of living of the spouses established during the marriage;
    • The relative education of the spouses and time necessary to acquire sufficient education or training to enable the requesting spouse to find employment to meet his/her reasonable economic needs;
    • The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support;
    • The property brought into the marriage by either spouse;
    • The contribution of a spouse as homemaker;
    • The relative needs of the spouse;
    • The federal, state, and local tax ramifications of the alimony award;
    • The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the partiesí marital or divisible property; and
    • Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.
    In a claim for alimony, either spouse may request a jury trial on the issue of marital misconduct.

    Child Custody and Support

    Custody:

    An order for custody of a minor child shall award the custody in accordance with the best interests and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly.

    No preference will be given to one parent over the other. Joint custody will be considered upon the request of either parent. The court may also grant exclusive custody to one parent. Any custody order will include terms, including visitation, that will best promote the interest and welfare of the child.

    A custody order may provide for visitation rights by electronic communication. In these instances, the court shall consider the following:
    • Whether electronic communication is in the best interest of the minor child;
    • Whether equipment to communicate by electronic means is available, accessible, and affordable to the parents of the minor child; and
    • Any other factors the court deems appropriate in determining whether to grant visitation by electronic communication.
    The court may set guidelines for electronic communication, including the hours in which the communication may be made, the allocation of costs between the parents in implementing the communication with the child, and the furnishing of access information between parents necessary to facilitate the electronic communication. Electronic communication may be used to supplement visitation but not as a replacement or substitution for custody or visitation.

    Support:

    Child support payments shall be in such an amount to meet the reasonable needs of the child(ren) for health, education, and maintenance, having due regard to the estates, earnings, conditions, accustomed standard of living of the child(ren) and the parties, the child care and homemaker contributions of each party, and other facts of each particular case.

    North Carolina uses the Income Shares Model for calculating child support and it is awarded pursuant to a statewide guideline which includes a procedure for setting child support, if any, in a joint or shared custody arrangement. Periodically, but at least once every four years, the Conference of Chief District Judges shall review the guidelines to determine whether their application results in appropriate child support award amounts.

    The guidelines establish the use of a formula to calculate child support amounts. The formula has certain variables, which include each partyís income, daycare expenses, the cost of medical insurance and the living arrangements of the child(ren).

    The court may deviate from the guidelines if it determines by the greater weight of the evidence that their application would not meet or would exceed the reasonable needs of the child, considering the relative ability of each parent to provide support, or would be otherwise unjust or inappropriate.

    Court ordered child support payments shall generally terminate if the child becomes emancipated, or when the child reaches the age of 18. They will continue past the age of 18 if the child is still in primary or secondary school until he/she graduates, otherwise ceases to attend school on a regular basis, fails to make satisfactory academic progress towards graduation or reaches age 20, whichever comes first.

    Legal Separation vs. Divorce from Bed and Board

    In North Carolina, Legal Separation occurs on the date that a husband and wife move into separate residences, with one having the intent of continuing to live separate and apart. Although a written agreement isnít required to establish a legal separation in North Carolina, there are options available to those couples desiring one regarding the legal issues of separation: a Separation Contract; a Separation Agreement and Property Settlement (SAPS), or a Court Order.

    A SAPS is more extensive than a Separation Agreement by spelling out how marital property will be divided, if alimony will be paid and how much, how child custody and visitation will be arranged, the amount of child support to be paid and other issues relating to the separation.

    A legal separation judgment from a North Carolina court resolves issues around children and property that a divorce would, even though the couple would still be legally married.

    Postseparation Support:

    When a couple begins to live separate and apart from each other, either party may move for postseparation support. In ordering this support he court shall base its award on the following factors:
    • The financial needs of the parties, considering the partiesí accustomed standard of living;
    • The present employment income
    • Other recurring earnings of each party from any source;
    • Each partyís income-earning abilities;
    • The separate and marital debt service obligations;
    • The expenses reasonably necessary to support each of the parties; and
    • Each partyís respective legal obligations to support any other persons.
    At a hearing on postseparation support, the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in determining whether to award the support, and if so, what amount. When considering this misconduct by the dependent spouse, the court will also consider any marital misconduct by the supporting spouse.

    With the exception of marital misconduct by the dependent spouse, he/she is entitled to an award of postseparation support if, based on consideration of the factors identified above, the court finds that the resources of the dependent spouse are not adequate to meet his/her reasonable needs and the supporting spouse has the ability to pay.

    At any time after a husband and wife begin to live separate and apart from each other, a claim for equitable distribution may be filed and adjudicated, either as a separate civil action, or together with any other action brought under Chapter 50 of the General Statutes.

    Divorce from Bed and Board:

    In most cases, spouses voluntarily separate from each other. However, there are instances where an injured spouse brings an action to get the court to order the other spouse out of the residence. This judicially authorized separation is referred to as divorce from bed and board. This is a fault-based action, and is not an absolute divorce. The couple remains legally married, with a court order to live separate and apart from each other.

    Divorces from bed and board are rarely granted. Only the injured spouse can apply for one, based on the following grounds:
        1. Either party abandons his/her family;

        2. Either party maliciously turns the other out of doors;

        3. Cruel and barbarous treatment endangers the life of the other;

        4. Either party offers such indignities to the person of the other as to render his/her condition intolerable and life burdensome;

        5. Either party becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and his/her life burdensome; or

        6. Either party commits adultery.

    Unlike divorce, it is not necessary for these grounds to have existed for at least six months prior to filing the action. If the court determines that a spouse has committed one or more of these acts, the offending spouse may be ordered to leave the marital home.

    When a divorce from bed and board is granted, spouses lose all automatic inheritance rights that normally exist by virtue of marriage.

    Links to State Resources

    • North Carolina Child Support Guidelines

      The calculation of child support is governed by North Carolina Child Support Guidelines established by the Conference of Chief District Court Judges. The worksheets are the property of and copyrighted by the Administrative Office of the Courts (AOC) and placed on this web site with permission of AOC.

    • North Carolina General Statutes, Chapter 50 Divorce

      Links to text of North Carolina Statutes regarding Divorce, Alimony, child support, family law, collaborative Law Proceedings, and Parenting.

    • North Carolina Rules of Civil Procedure

      Links to text of Rules of Civil Procedure outlining how to proceed with civil court actions in North Carolina.


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