Finding a professional divorce lawyer in Wilmington NC is not that easy, but before that you should be aware enough of what you are about to do. North Carolina is a no fault state. However, there are many other marital claims that arise out of the dissolution of a marriage. The claims associated with a divorce or the dissolution of marriage are: Alimony, Child Custody, Child Support, Equitable Distribution, Interim Distribution, and Post Separation Support. It is necessary to file claims for Equitable Distribution, Interim Distribution, Post Separation Support, and Alimony prior to the entry of the Divorce Judgment. If one fails to file the aforementioned claims there is a strong possibility that the claims maybe lost forever.
In North Carolina, “absolute divorce” refers to the termination of the marriage bond that was created by your wedding ceremony and marriage certificate. Divorce permanently ends that marital relationship. Because the marital relationship is terminated, the spouses no longer owe each other any further marital obligations or duties, and they are free to remarry.
The North Carolina no-fault divorce statute allows the parties to divorce, if they meet the following three (3) criteria:
(1) they must live “separate and apart” (meaning, they are not living as spouses and do not share a residence) for one uninterrupted year.
(2) the reason they are living apart is that one or both want to stop living and acting as a married couple.
(3) at least one of the spouses has lived in North Carolina for the last six months. That is all that the statute requires. This is a simple threshold to meet, because all it requires is the passage of time.
The court may also grant an absolute divorce on grounds of one spouse’s “incurable insanity.” This is the rarer of the two routes to an absolute divorce. It requires, among other things, that the spouses currently live separate and apart and that they have lived separate and apart for the last three years because the mentally ill spouse was confined for purposes of medical treatment. If you think this law might apply to you, it would be prudent to consult with an experienced family law attorney, because the law is complex.
No, not in North Carolina. States that have “fault” divorce laws allow “innocent” spouses to obtain a divorce on the basis of emotional, physical, or financial injuries caused by the “guilty” spouse (the one who has committed some kind of marital misconduct). Obtaining a divorce on the basis of fault can be time-consuming and difficult, so North Carolina abolished all its fault laws in 1983.
There are many variations of but the majority have suffered alteration in some form, by injected humour, or randomised words which looks. There are many variations of but the majority have suffered alteration in some form, by injected humour, or randomised words which looks. Annulment means that the marriage between two spouses is voided. Once the Court orders an annulment, it is as if the marriage never existed. You can only get an annulment in very limited situations. This is not the same as a religious annulment, which can only be granted by your church and has no legal effect on your marital status.
Many people think an annulment is an easier or quicker alternative to getting a divorce, but this is simply not true. Because the situations in which an annulment could be granted are limited and very specific, you should seek the help of a lawyer if you want an annulment.
In North Carolina, a marriage that is shown to be invalid can be annulled. There are two types of invalid marriages in North Carolina - "voidable marriage" and "void marriage." A "voidable marriage" includes the following situations:
1. incest, meaning the husband and wife are closer than first cousins (for example: double first cousins, uncle/niece, siblings),
2. “false pretenses,” meaning the husband and wife got married believing the wife was pregnant, but then separated within 45 days of the marriage and no child was born within 10 months of the separation,
3. either spouse was physically impotent at the time of the marriage (impotence must be diagnosed by a doctor),
4.either spouse was “not of sound mind” and incapable of entering a contract at the time of the marriage, or
one of the spouses was under the age of 16 at the time of the marriage (unless there was a court order allowing marriage between ages 14-16 when the wife is pregnant).
It is important to understand that voidable marriages can be made made legal or “ratified” by the actions of the husband and wife. If the husband and wife continue to live together after the marriage and then have a child together, their marriage may become valid. If this happens, one of them would have to file for a divorce to end their marriage.
In North Carolina, the only absolutely "void marriage" is when there is bigamy (where one spouse was already legally married to some other living person). A bigamous marriage is never made valid by the actions of the spouses and can even be challenged after the death of one of the spouses. A bigamous marriage is automatically void and an annulment is not legally needed to make the marriage void. However, even in this situation, you should still seek a court order that annuls your marriage in order to avoid future confusion about your marital status.
North Carolina law allows a spouse, in conjunction with a divorce, to take a name other than the current spouse’s last name. You would petition for the name change when you file your divorce complaint or when you file your answer to your husband’s complaint. In your complaint for divorce or your answer, you may petition the court to change your name to either your maiden name, the surname of a prior deceased husband or the surname of a prior living husband if you have children who have that husband’s surname. The court will issue an order at the time of the divorce granting your request for a name change.
Should you decide after the divorce that you want such a name change, you just present your divorce judgment to the clerk of court. For a nominal fee, you will be allowed to have one of the name changes specified above.
Legal separation in North Carolina occurs on the date that a husband and wife move into separate residences with the intent to continue living apart from one another. Sharing the same residence but sleeping in separate bedrooms does not constitute separation.
No. You are legally separated as soon as you begin living separate and apart with the intention for the separation to be permanent. Although the law does not require a couple to sign paperwork when they separate, you should consider drafting a separation agreement if you decide to live apart. Many people frequently hire attorneys to draft their Separation Agreement and Property Settlement papers in order to resolve certain issues at the time of separation. Within these separation agreements people often outline how their property will be divided, how much, if any alimony will be paid, how child custody will be arranged, and what amount of child support will be paid.
A separation agreement can contain any one or all of the issues. The only issue that cannot be contained in a separation agreement is the divorce itself. The divorce can be obtained after one year and one day of separation in North Carolina. When spouses are in agreement over these issues and wish to avoid more costly litigation in court, a Separation Agreement and Property Settlement may be their best option. However, it is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.
In North Carolina, spouses are required to live separate and apart for at least twelve (12) months and a day prior to filing a Complaint for Absolute Divorce. This means that the parties have lived in separate residences for at least a year and have at no time resumed the marital relationship which formerly existed between them during that period of separation.
Under prior case law, living “separate and apart” meant a cessation of habitation as well as sexual relations. Under present law, isolated incidents of sexual intercourse after the date of separation do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident of sex is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” for purposes of calculating the consecutive one-year period required for divorce.
No. Lawyers are bound by the Rules of Professional Conduct which prohibit representing both sides in an adversarial – or potentially adversarial – situation.
It doesn’t matter. As long as you have been living separate and apart for more than one year and correctly filed the proper paperwork, you can get a divorce.
Aside from some legal terminology required by statute, a Complaint for Absolute Divorce is relative simple form, in that it only contains the following information:
&
1. The county and state of residence for both Plaintiff and Defendant
2. Date and location of the marriage
3. Date of Separation
4. The names and dates of birth for any minor children born of the marriage of the parties.
If the husband and wife are unable to resolve all issues with a Separation Agreement, then a court order may be necessary. Before a court can have jurisdiction (authority) to enter an order, one spouse must file a complaint initiating a lawsuit against the other spouse. Once a lawsuit has been opened, the court can resolve issues such as child custody and support, visitation, short term spousal support, alimony, and property division.
Yes, you can. However, it is important to consult with an attorney before filing for divorce if you have these other issues pending. Certain claims, such as equitable distribution and alimony cannot be filed after a divorce has been granted.
Service is the form of delivery of a document required by pertinent legal rules. In North Carolina, a Civil Summons and Complaint must be served upon the Defendant either by certified mail or by Sheriff.
A final, alternative method is a process called “Notice of Service of Process by Publication”. A party that cannot otherwise be served with due diligence by personal delivery or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. §7502(f)(2), may be served by publication.
This method of service consists of publishing a notice of service of process by publication once a week for three (3) consecutive weeks in a newspaper that is qualified for legal advertising and circulated in the area where the defendant is believed to be located. Upon completion of this service, an affidavit of service by publication must be filed with the court.
If the husband and wife are unable to resolve all issues with a Separation Agreement, then a court order may be necessary. Before a court can have jurisdiction (authority) to enter an order, one spouse must file a complaint initiating a lawsuit against the other spouse. Once a lawsuit has been opened, the court can resolve issues such as child custody and support, visitation, short term spousal support, alimony, and property division.
No, not necessarily. The Defendant typically has 30 days from the date of service of summons and complaint upon him or her to file answer or other responsive pleading. A Defendant can also move for an additional 30-day extension of time. In cases where service has been by publication, the Defendant has 40 days to file an answer. It commonly happens, however, that Defendants in divorce actions file no answer. In such a case, you just wait out the waiting period for calendaring the case for hearing (or, if your spouse will agree, you get him or her to file a paper waiving the waiting period). At the expiration of the applicable waiting period, the case may be calendared for hearing.
If you have hired an attorney, then the answer is usually no. Your attorney will bring the draft of the Divorce Judgment, which the judge will sign, after reviewing the legal filings and ensuring that everything has been processed and served correctly. On a rare occasions, a live hearing may be required by the Court, and your attorney will advise you of this in advance.
If you wish to incorporate your Separation Agreement into your divorce decree (thus making your Agreement a Court Orde), you must petition the Court for an incorporation of that agreement as part of your Divorce Complaint. The Separation Agreement then becomes part of the court file and an order, which may also be modifiable.
Most Separation Agreements are not incorporated, as they are valid and fully enforceable contracts on their own. However, you should consult with an attorney about how this may affect your personal situation.
If you have hired an attorney, then the answer is usually no. Your attorney will bring the draft of the Divorce Judgment, which the judge will sign, after reviewing the legal filings and ensuring that everything has been processed and served correctly. On a rare occasions, a live hearing may be required by the Court, and your attorney will advise you of this in advance.
Yes, we do. The flat fee for an Absolute Divorce case is usually $750.00. This includes both the attorney’s fees, filing fees required by the Court, and the fees for service either by certified mail or sheriff. Should we be unable to serve your spouse by either of these methods, an additional fee will be required to cover the cost of service by publication and/or any other research required to locate your spouse.
Family Law is an area of law that focuses on family disputes and obligations. This includes issues such as child custody, child support, divorce, property division, spousal support, domestic violence, and adoption.
It can also involve certain “heart balm actions”, more commonly known as Alienation of Affection and Criminal Conversation lawsuits, which are allowed in only nine states, including North Carolina. This field of law is one of the most contentious and difficult areas of law to navigate, and it is important that you seek someone who is skilled and knowledgeable in this type of practice.
Often times, the parties are able to resolve custody issues by agreement or in mediation. However, if a custody case goes to court, the judge will focus on what is in the best interests of the child in determining with whom your child will reside. This forces the court to direct its attention primarily to you and your spouse, examining your conduct in the past and in present to determine how you will parent your child in the future. The trial judge is given wide discretion in his or her determination of one parent’s fitness or the other, and appeals are very limited in this kind of litigation because courts of appeal are often unwilling to overturn a ruling by the trial judge who presided over the proceedings.
Any parent, relative, or other person, agency, organization, or institution claiming custody of a minor child may bring an action in court. Filing a complaint, counterclaim, or motion in the cause in a prior pending action are the usual methods for putting custody before the court. In disputes involving child custody and/or visitation, it is important that you have the necessary and effective tools to resolve these conflicts.
North Carolina is a “no-fault” divorce state. Neither party to the divorce is required to claim their partner is at fault for the breakdown of marriage. Accordingly, the only requirement to receive a divorce in North Carolina is that you have been a resident of the state for at least six months preceding the filing of your Complaint, and that you have been separated from your spouse for at least 12 months.
Separation occurs when one party leaves the marital residence. However, divorce is often accompanied by other issues including, but not limited to: child custody, child support, property division, and spousal support. If claims for spousal support and/or property division are not filed prior to the entry of the divorce, they are often times lost forever.
For various reasons, parents often have to relocate. As a result, custody disputes often occur and have to be resolved. If court action is needed, the court considers many issues including: the reason for the move, what benefit to the child the move will have, and what impact the move will have on the other parent’s access.
Child relocation is a complex endeavor, and it is important to have a skilled advocate to assist you in this type of action.
Property division in the state of North Carolina is referred to as equitable distribution. At any time after the parties separate, either party may file an action for equitable distribution. A final equitable distribution judgment may be rendered either before or after the parties are divorced, at the discretion of a judge. If the judgment is being entered by consent, the parties themselves can stipulate to do so prior to the divorce.
There are many factors the courts consider during an equitable distribution matter. In North Carolina Property is classified as marital, separate or divisible. Before any equitable distribution case goes to mediation or to Court, it will be necessary to identify and ascertain the values of all real and personal property, as well as debts acquired by the parties during the marriage. Further, it is important to consider the tax consequences to either party based upon the distribution of many assets.
For most parties, child support is calculated pursuant to the North Carolina Child Support Guidelines. Exceptions to this are parties whose combined gross monthly income exceeds $25,000. The factors used to calculate a parent’s child support obligaton are: both parties gross monthly incomes, other children not of this relationship, health insurance costs, work-related daycare costs, and other extraordinary expenses.
In some cases, a party can seek to deviate from the guidelines. Further, if you are a business owner or an independent contractor, it is important to determine your accurate amount of gross income. In addition, child Support can be awarded retroactively, depending on certain circumstances.
Permanent Orders for Child Custody can be modified. In order to modify a child custody order, a party must show that there has been a substantial change of circumstance affect the child’s welfare since the entry of the last order. The moving party must be able to show the court that it is in the best interest of the minor child or children to change the current custody arrangement.
Similarly, a party seeking to modify a prior child support order must also show the Court that a substantial change in circumstances has occurred since the entry of the prior order such as a significant change in the income of one or both the parties or a change in the needs of the child. Often times, these motions go hand in hand, as any change in custody would likely lead to the need to change a prior order on child support.
Spousal Support in North Carolina is found in the form of Post Separation Support and Alimony. Post Separation Support is temporary support awarded after the parties separate and paid by the supporting spouse to the dependent spouse. Unlike Alimony, post separation support is not fault-based and is only based upon the financial needs of the parties. The amount of post separation ultimately awarded is based upon the reasonable needs and expenses of the dependent spouse and the shortfall he/or she has at the end of each month.
Alimony is a separate claim from post separation support and must be filed before your divorce is final. Unless otherwise resolved in mediation or by consent, the Court will determine how much alimony, if any, a party is entitled to after consideration of multiple factors. This is where fault comes in, and marital misconduct committed by either party is one of sixteen factors considered by the Court in an alimony case. It is important to hire a family law attorney with expertise in this area, whether you are making this claim or defending yourself against one.
Domestic Violence Protect Orders are commonly known as restraining orders. In North Carolina, you can file for a Domestic Violence Protective Order against a family member, a spouse or domestic partner, a current or former household member or a person you are dating or have dated. Some of the grounds for protective order are: a party causing or threatening to cause bodily injury to another, harassment, and/or placing a party or their family in fear of imminent bodily harm or injury.
A judge can issue an ex parte temporary order that will go into immediate effect without the respondent having a chance to present evidence or testimony. This order usually lasts about 10 days, but will not go into effect until the respondent is served with a notification. A permanent domestic violence order requires a full court hearing where both you and the respondent have the chance to present evidence and testimony.
If your spouse is having an affair with another person, you may have a claim for alienation of affections and/or criminal conversation. Criminal Conversation is a tort lawsuit against a third party who has committed adultery with someone’s spouse.
The person having the affair with your spouse does not have to know that your spouse is married to be found liable for criminal conversation. Alienation of Alienation is a tort lawsuit, involving a complaint brought by a deserted spouse against a third party alleged to be responsible for the failure of the marriage.
When a family law dispute clouds your future, you cannot afford anything less than strong and effective representation. At Johnson Law, we help people work to overcome family law problems.
At Johnson Law, all we handle are family law cases. Having an experienced family law attorney by your side to guide you through the complex legal system can significantly reduce the tension and confusion.
We will listen to your story and ask questions in order to learn about your ultimate goals. Only by understanding where you would like to end up can we develop a legal strategy to help you get there.