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Separation & Divorce

Out of all of the legal proceedings people may face, divorce actions have some of the most dramatic and long lasting impacts on the lives of those involved. If you are recently separated, served with an absolute divorce complaint or are contemplating filing one, or if you have questions or concerns surrounding these difficult issues, please contact one of our Raleigh divorce lawyers.

Below are answers to commonly asked questions in this, often confusing, area of the law:

Q. Do I File for Separation?

A. No. Separation happens once husband and wife begin living separate and apart and at least one of them has the intent to remain separate and apart.

Q. Do I Need an Agreement or Court Order to be Legally Separated?

A. No. You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way.

Q. Is it OK if We Continue Living in the Same House?

A. No. Living separate and apart means you must be living in separate residences.

Q. What are the Grounds for Divorce?

A. There are only two grounds for divorce: 1) Separation for One Year; or 2) Incurable Insanity of One Spouse and Separation for Three Years. The vast majority of marriages are dissolved based on the ground of separation for one year. In order to get divorced, you must have been separated for one year and at least one spouse must have had the intent to remain separate and apart. In addition, one of you must have been a resident of North Carolina for at least six months. Fault is not necessary to obtain a divorce.

Q. What Do I Need to Do to Get Divorced?

A. You have to file a Complaint (lawsuit) asking for a divorce. You cannot file a divorce complaint until after you and your spouse have been separated for one year. You have to serve your spouse with the Complaint. Service is usually accomplished by certified mail or Sheriff. Then you will need a hearing in front of a judge. The judge has to enter a Judgment declaring you divorced. You are not divorced until the judge signs a Judgment and the clerk file stamps it.

Q. Does it Matter Who Files for the Divorce?

A. No. The person who files for the divorce is responsible for filing the appropriate papers, paying the filing fee and getting the hearing scheduled. However, there is no advantage to filing first.

Q. How Long Does the Divorce Process Take?

A. The length of the process varies based on how long it takes to get service on your spouse and how soon the clerk schedules the divorce hearing. Generally, it should take approximately 45 to 60 days after the Complaint is filed.

Q. What is the Effect of a Divorce?

A. There are many important effects of a divorce. First, the entry of a divorce cuts off your right to alimony and property division. If those claims have not been resolved in a valid and binding Agreement or properly filed with the court prior to the entry of the divorce judgment, they are lost forever. The loss of those claims can be devastating. If you have a claim for alimony or if you or your spouse acquired property during the marriage (house, cars, bank accounts, retirement), you need to consult an attorney to protect those claims. Second, the entry of a divorce changes your tax filing status. Third, the entry of a divorce enables you to remarry. Fourth, the entry of a divorce cuts off your rights to inherit from your spouse. Fifth, it can alter the way your house is owned if you own a house with your spouse.

Q. How Do I Change My Name Back?

A. You may include a request to change your name in your divorce complaint. The name change can be included in the divorce judgment. You cannot change your name to any name in this process. You may resume a former married name under certain circumstances.

Q. What about Custody, Child Support, Alimony, and Property Division?

A. These issues are complicated and beyond the scope of this article. You may resolve these issues by agreement with your spouse, in which case you would execute a Separation Agreement. In order to be valid and binding, a Separation Agreement needs to follow certain formalities. You should consult an attorney for assistance in negotiating and drafting the Agreement. If you and your spouse are not able to agree, you can try mediation or arbitration as alternatives to court. If those options do not work for you, you will have to file a Complaint (lawsuit) seeking relief in court. Regardless of which approach you choose, you should consult with one of the experienced Raleigh divorce lawyers at Cheshire Parker Schneider & Bryan first.

Resources:

“This Is The Law” Pamphlet series, Separation and Divorce, http://www.ncbar.org/public-pro-bono/publications/this-is-the-law-pamphlets, North Carolina Bar Association, copyright 1983, revised 2011, reviewed 2013.


 

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