• Jeff Hutchins

Separation and Divorce


Under North Carolina General Statute (NCGS) 50-6

Couples who have been married may dissolve the union. Unlike many other states, NC has a waiting period of a year after the separation. They key word is after separation and not after the filing for Divorce. Roughly this means the couple must not act, hold themselves out or be a couple for a year.

A common question client has regards sexual relations. The law states that, “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year”. Put another way, having a one-night stand with your estranged spouse will likely not start reset the one-year clock. Even so, it is likely the better move is to not give into temptation if you know the marriage is over.

In doing this job long enough, I have found, many bitter spouses may seek to deter the divorce. This can be done for many reasons. Normally it is to keep the other party from getting remarried, negotiation leverage and or to be spiteful.

In addition to the separation for a year the plaintiff (person seeking the divorce) must seek to end the marriage. Even if the defendant (the person who was sued) wants to keep the marriage going, the judge will grant the divorce if the proper steps were taken.

Exceptions

Under NCGS 50-4, an individual may get an annulment prior to the year period. These exceptions are extremely rare, and judges will normally not grant relief but for a few narrow reasons. Fraud (tricked into the marriage) and mental incompetence are the most common expectations that may lead to this type of relief.

Effect of pending claims

Many people confuse the divorce with other issues (Equitable distribution, Alimony, Child Support and Custody). These other issues may be litigated immediately and the year waiting period does not apply.

Many North Carolinian’s don’t realize how critical it is to either file for or deal with all marital claims (those listed above) prior to getting a divorce. Put simply, you may lose rights if you obtain a divorce prior to dealing with martial property claims such as Alimony and Equitable distribution. Due to this, it is important those getting a divorce, consult with an attorney before getting divorce.

Procedure

The process to get a divorce is the same as any lawsuit. One must file for divorce, serve the opposing party, calendar the hearing, show up for the hearing and bring the appropriate paperwork to the hearing. If you hire an attorney, it is likely you will need not show for court. They attorney may appear on your behalf and seek the divorce. It is possible with the right circumstances to have the clerk of court grant the divorce without a hearing.

Resumption of Maiden Name

For individuals who changed their name due to marriage, they can resume their former name if so desired. Even so, this cost additional fees and must be included in the paperwork filed. Failure to have the courts grant this request keeps one from getting the legal process started to change all the forms and documents from your former name.

Divorce from Bed and Board

Even though the name implies divorce, this cause of action is a legal tool that allows a party certain rights and abilities during the separation period. This can be legal declaration of being separated. More commonly this deals with who can reside in the martial residence. A few examples are malicious turning out, excessive substance abuse, adultery or other intolerable conditions.

Polygamy or Bigamy

North Carolina does not allow a civil statute the disallows multiple marriages or spouses. Instead it is a state criminal law NCGS 14-183 that makes it a Felony to marry while already into a binding matrimony. Additionally, common law marriages are not present in NC.

How does Divorce affect child custody and support?

Overall, divorce does not directly affect your custody rights and child support obligations or award. Even so, it is very common for most individuals who hire an attorney, to wrap up all issues in a private settlement agreement (contract between the parties) or a consent decree (court order where the parties agree on all the issues). Thus, if you have children from the marriage, it is important to tell your attorney that in addition to a divorce, you have children and your needs in relation to them.

Overall

The concept of a divorce is straight forward and simple but the steps getting to having the clerk or Judge to sign the order (papers) granting the divorce entails a few hoops. Ensure you give us or another attorney a call if you have any questions or seek an assistance with the process.