Divorce – State FAQ – North Carolina
Residency requirements, venue and procedures
Q: How long must I have lived in North Carolina prior to filing for divorce in a North Carolina court?
A: At least one of the parties to the action for divorce must have resided in the State of North Carolina for at least six months immediately prior to the institution of the action for divorce.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Plaintiff, while the other party to the divorce is referred to as the Defendant.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In North Carolina, proper venue for the divorce action is the Superior or District Court. The action should be filed in the county where either party resides.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Complaint for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Grounds for divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in North Carolina. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in North Carolina?
A: A divorce may be granted in North Carolina based upon the incurable insanity or mental illness of one of the spouses, or upon the parties living separate and apart for a period of one year without cohabitation.
Q: Does North Carolina Law provide for a simplified divorce procedure?
A: Yes. The simplified procedure is discussed in the North Carolina Divorce Information section of the North Carolina Divorce Main Page.
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: Either party may be awarded alimony upon a finding that the party seeking alimony is dependent upon the other party for support and such an award would be equitable. Fault of the parties as it pertains to adultery during the marriage is considered when awarding alimony. Other factors the court will consider in determining the amount and duration of an award of alimony include:
1. Marital misconduct;
2. Relative earnings and earning capacities of the parties;
3. The ages, physical, mental and emotional health of the parties;
4. The amount and sources of income of both spouses;
5. The duration of the marriage;
6. The contribution of one spouse to the education, training or increased earning power of the other spouse;
7. The extent that serving as a child’s custodian will affect a party’s earning power, etc.;
8. The standard of living established during the marriage;
9. The relative education of the parties and the time necessary for a party to acquire sufficient education or training to meet his or her reasonable needs;
10. The relative assets and liabilities of the parties; and,
11. Any other relevant factor.
Q: On what basis does the court decide how marital property is divided?
A: North Carolina is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court’s discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the following factors:
1. The income, property, and liabilities of the parties;
2. Any obligation for support from a previous marriage;
3. The duration of the marriage and the age, physical and mental health of the parties;
4. The needs of the custodial parent;
5. The expectation of pension, retirement or other deferred compensation rights that are not marital property;
6. The contribution to the decation or earning potential of the other spouse; and,
7. Any other factor the court deems just and proper.
Q: Is the “separate property” of one spouse subject to being divided?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
Custody will be determined according to the best interests of the child. There is no presumption that one parent is better suited to promote the best interests of the child. Factors the court will consider in determining the child’s best interests include:
1. Acts of domestic violence between the parties;
2. The safety of the child; and,
3. The safety of either parent from acts of domestic violence of the other parent.
An order of child custody may also contain provisions for visitation rights for any grandparent of the child.
Q: What is “child support”?
A: Child support is money paid by the non custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: North Carolina has enacted guidelines which establish the amount of support presumed to be correct. The court may deviate from the guidelines however, upon a finding that the application of the guidelines would be unjust or inappropriate under the particular facts of the case. If the court does deviate from the guidelines, it shall state its reasons for doing so in its order.