Frequently Asked Questions About Divorce
What Is A Divorce?
A divorce, known as an “absolute divorce”, is an absolute and final termination of the marital relationship between two people who have been legally married. There are other terms which some people mistakenly call a divorce, but which have a different legal meaning such as:
Separation: A separation begins when two married people live separate and apart and at least one of them intends that the separation be permanent. Divorce From Bed and Board: A divorce from bed and board is based on fault grounds and is a form of legal separation. It is not necessary to have a legal separation to be separated, and it’s use is for certain specific limited purposes. Annulment: An annulment is the termination of a void or voidable marriage. Separation Agreement: Even if you and your spouse have settled all issues between you by entering into a Separation Agreement you will still need to file a court action to obtain an absolute divorce.
When Can I Get Divorced?
In North Carolina you must be separated for one year to obtain a divorce. Either you or your spouse must, also, have resided in the state for at least six months directly preceding the time you file for divorce.
How Do I File a Divorce Complaint?
If you have settled all issues or have no property to divide, no alimony issues, and no custody or child support issues, you can file an action for Absolute Divorce. See our article “How To Do Your Own Divorce.” Your action should be filed in the judicial district (usually a county) where either you or your spouse resides. Once you are divorced, you can no longer file an action for alimony or equitable distribution (property division) so it is important that these matters either be included in your divorce action or settled prior to your divorce action.
What Do I Need to Do to Be Officially Separated?
You don’t need to do anything other than separate. Separation begins when you live separate and apart and at least one party has the intent of not continuing the marital relationship.
What If I Don’t Want to Separate?
Just because your spouse wants a divorce does not mean you have to agree. Unless there is violence or a threat of violence, no one can make you leave your home unless it is ordered in a court of law. However, no one can force the other spouse to stay in a marriage. If you and your spouse have been separated for one year and one of you has been a resident of North Carolina for the last six months or longer, either of you can file for divorce and if the allegations are true, the court will enter a divorce even if you don’t want one and even if there are no fault issues. Be sure to see an attorney before a divorce is granted to make sure all your rights are protected.
What Happens During that Year of Separation?
A lot of that is up to you. Many people want to know what to expect and count on during this period of time. A family law attorney will be able to assist you in determining your rights and responsibilities from or to your spouse and help establish a custody and child support resolution that is in the best interest of your children. You and your spouse can also divide your property during this period.
Do I Have to Go to Court?
The only things that have to be filed in court are the actual divorce action and any qualified domestic relations order which divides deferred compensation accounts. And even then, you can arrange matters with your attorney so you do not need to appear in court. Other matters can be settled outside of the courtroom.
If I Don’t Go to Court, How Will Things Be Settled?
There are many different ways to resolve your matter. A very common way is for you and your spouse to enter into a Separation Agreement. A separation agreement is a contract between you and your spouse which usually settles all matters between you. It can be tailored to fit your individual needs and desires. It is more flexible than a court order because you and your spouse determine its terms. You and your spouse will each have separate attorneys.
Mediation is a process in which parties try to reach a mutually acceptable agreement through a meeting or series of meetings. There are many different types of mediation, but in all meditations the parties have to agree, no one will force a settlement on you. There is a kind of mediation known as collaborative law where the parties, attorneys, and any expert witnesses sit around a conference table and attempt to resolve issues together. However, in those situations, if an agreement is not reached, the attorneys must withdraw from representation and cannot continue to represent the client.
A similar process to mediation is arbitration. In an arbitration, the parties will not be in a courtroom but can take testimony and present evidence and witnesses. The procedures can vary by mutual agreement. The arbitrator will act as a private judge and make the decision for the parties. The arbitration order can be made into an order of the court. Sometimes an arbitration is helpful if there is a long delay before a matter will be heard in court. There is also a possibility to have an arbitrator decide whatever matters were unresolved in a mediation. See How Your Matter Can Be Resolved
Why Should I Go to Court?
An out of court settlement requires an agreement between the parties. If one party is unable or unwilling to agree, the only choice is to let a judge decide. Sometimes there are complex issues which involve true questions of law or fact which need the attention of the court. Also, when the emotions are high and a separation new, Court actions can help set up temporary measures for child custody or support and to insure that one party can receive enough funds to be able to meet current living expenses, or hire an attorney, or determine which party is going to pay certain bills.
What Should I Do If There is Violence?
Violence should never be accepted or tolerated. However, only you can determine if there is a danger of imminent bodily harm or of continued harassment which rises to a level that can inflict substantial emotional distress . The first thing any person must do in a violent situation is to remove yourself and your children from that situation. After getting to a safe place, you can proceed to court for a domestic violence protective order. A person can bring an action for a domestic violence protective order if they are complaining of domestic violence by a person with whom they have any of the following relationships:
a. Are current or former spouse
b. Are persons of the opposite sex who are living together or have lived together
c. Are related as parents and children including those acting in loco parentis
d. Have a child in common
e. Are current or former household members
f. Are persons of the opposite sex who have been romantically involved over time and in a continuous basis during the course of the relationship
**please note, with a change in the law to allow marriage between people of the same sex, this statute will be amended and interpreted to apply to persons of the same sex living together as well as persons of the opposite sex**
If you do not have any of the above relationships with the person but you are a victim of abuse, stalking, or non-consensual sexual conduct, you can bring an action against the perpetrator for a civil no contact order.
You can, also, go to the magistrate and seek criminal charges against the abuser.
There can be adverse affects on immigration status and on work issues which you may wish to discuss with counsel before proceeding further.
For further information on how to obtain a civil domestic violence protective order or civil no contact order see our article under Domestic Violence.