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What you need to know about divorce

Kathryn Dekker - 9/19/2016

Getting Divorced

If you’re having difficult time in your marriage you may be contemplating divorce. At times it may seem easier to be done with it all and move on. Regardless of the reasons you may have to call it quits, all states, including North Carolina, offer some variation of what is called a “no fault” divorce. In the past, some states required that a person seeking a divorce would have to show that his or her spouse did something warranting ending the marriage, such as adultery. Other countries around the world still have fault as the only basis for getting a divorce. Over time, that changed, and now in the US you can get a divorce for no reason at all other than that you want one.

That being said, the process of getting a divorce is not an easy one. Divorce is a process controlled by the courts. In order for a court to grant a divorce, North Carolina and many other states have a six-month residency requirement, meaning that at least one of the spouses must have lived in the state for six months before the court will consider hearing the divorce. Additionally, North Carolina requires that the spouses be separated for one full year before filing for divorce. This is a legally-mandated waiting period on divorces. It’s the state’s way of promoting the institution of marriage and allowing couples time to work things out before deciding on divorce. Other states allow for shorter time periods, but residency requirements ensure you can’t just run off to another state for a quickie divorce.

Filing for Divorce

Once you or your spouse has been living in North Carolina for six months and you have been separated for at least a year, you may file for divorce. Filing for divorce means submitting the appropriate paperwork and filing fee to the court and initiating a lawsuit for divorce. Yes, getting a divorce is done by suing your spouse. Movies and TV shows often make reference to “signing divorce papers,” but this is simply not how things work in our state. You can’t just have your spouse sign some paperwork and you’re divorced. Since the process is a lawsuit controlled by the courts, you need to follow all the appropriate steps. This means knowing what to file, where to file, and what to do after you file. Of course, you can do this without counsel, but savvy folks know that an experienced family law attorney can be absolutely indispensable.

To start the suit for divorce you have to file a complaint that identifies all the grounds allowing the court to grant a divorce. When the complaint is filed on your behalf, you are the “Plaintiff” in the lawsuit. You must file the complaint in a county in North Carolina where either you or your spouse lives. Once you file the complaint the court will issue a summons, which is a document telling your spouse, who is now the “Defendant” in the lawsuit for divorce, when and where to go to court. Because it wouldn’t be fair to just get a divorce without letting your spouse know about it, the law requires that you give notice to your spouse by serving him or her with the complaint and summons. Just like with filing with divorce, there are strict requirements governing service of the complaint and summons. The initial summons is only good for sixty days before you have to renew it. You have to make sure you serve the summons and complaint while you have a valid summons. If you fail to follow the proper steps, you could have serious issues later. This is more of a worry for other types of lawsuits, but it can still create plenty of headaches in a divorce. 

You’ve Been Served A Complaint for Divorce

How do you serve somebody? You might think you can just hand the complaint and summons to your spouse, but this is not allowed under the law. There are several ways to serve a defendant in a lawsuit. You can serve a spouse through certified mail, have the sheriff serve them, or have a competent adult, often a private process server, serve your spouse. If you really can’t find your spouse in order to serve them after reasonable diligence you can serve them by publication, which is just posting a notice in the newspaper.

Answering the Complaint

After he or she is served, your spouse has thirty days (forty for publication) to “answer” the complaint. Answering means that your spouse responds to the allegations within the complaint by admitting or denying the allegations. This is the Defendant’s chance to have a say in the divorce proceeding. They can also counterclaim and ask the court to settle issues like alimony, child custody, child support and equitable distribution of marital assets and debts. Once the time allotted to answer the lawsuit expires, you can ask the court to grant the divorce. This will involve a hearing before a judge, or (in some counties) a clerk of court, who will grant a divorce judgment. The divorce judgment is the official proof of divorce that you can use to prove that you are no longer married.

Divorce can be a complicated process that raises a number of complex issues. You need someone with experience to guide you. The experienced family law attorneys at Kurtz & Blum can be there for you every step of the way.



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