How to Do Your Own Divorce
In North Carolina a divorce is called an “Absolute Divorce” and requires two main facts:
- You must be separated for one year and
- At least one party must be a resident of North Carolina for at least six months directly preceding the filing of the action.
Separation begins when you live separate and apart and at least one party has the intent of not continuing the marital relationship. You cannot be separated in the same house. It is not necessary for there to be anything in writing to be separated.
When you separate you may settle all marital issues either by agreement or by court action. Marital issues include issues regarding child custody and support, spousal support (alimony), and property distribution (equitable distribution). However, there is no requirement that you do so. If neither you nor your spouse has filed an action prior to the divorce action and no agreement has been reached, it is in your best interest to consult with an attorney before proceeding further.
The divorce itself is an easy process. Many courts, including the Wake County District Court, have a divorce packet available to provide you with sample documents and information needed for you to file your own divorce. However, before you do so, it would be best to research your rights to make sure that the self help doesn’t end up being the costliest help you ever have. If you have not settled issues regarding property distribution or spousal support before your divorce is final, you waive (give up) your right to do so.
Assuming you have researched your rights and have decided that you want to proceed with a divorce and no other issues, the process is simple.
- Prepare 3 copies of a divorce complaint and summons, sign and verify the complaint and have your signature notarized.
- Take the documents and the filing fee ($225 in 2016) to your county courthouse and file the papers with the Clerk of Court. They will keep one copy of the summons and complaint and give 2 back to you.
- Keep one copy for your file and serve the other set of papers on your spouse either by sheriff ($30 in 2016), certified mail (getting back the “green card”), or other manner designated by statute.
- File a proof of service with the court.
- Thirty days after the other party is served, file a notice of hearing ($20 in 2016) for the divorce. Be sure to send the notice to the other party. In Wake County all divorces are done on Fridays.
- Take 3 copies of a judgment with you to court on the day of the hearing. It is also a good idea to bring copies of all the documents you have filed in case you need to refer to them.
- Testify that the facts in your complaint are true and that you want a divorce. The judge will sign your divorce judgment. The clerk will give you a certified copy which you should keep and a copy you need to mail to the other spouse. You will need to have a proof of service attached to the divorce judgment you mail to the opposing party.
You cannot obtain a divorce quicker than 12 months after separation, you cannot get a “quickie” divorce in a foreign country, you cannot divorce in another state unless you or your spouse actually moves there. On the other hand, you cannot prevent the other party from obtaining a divorce if the statutory factors have been met.
If you have read through these instructions and have looked at the actual documents you need to file, you may wish to hire an attorney to do the divorce for you. If you hire an attorney, neither you nor your spouse will have to appear in court as your attorney can handle the actual divorce by a process known as summary judgment.
Bender LeFante Law Offices also has extensive experience doing International divorces. These involve other issues that we will gladly explain to you at a consultation.
Special Note to members of the military: Military personnel stationed abroad who wish to have a divorce in the US are not considered to be in the same category as International divorces. We can help you find out about the law in North Carolina if you call us for further information. In most circumstances an active duty member of the armed services cannot be served with or have a divorce entered against him or her absent some additional paperwork which the service member will have to draft and sign acknowledging consent to the entry of the divorce. If you have been served with a divorce and want to have it entered even though you are on active duty, speak to your JAG officer.