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Family Law & Divorce FAQ

Family law covers a wide range of issues, including pre-nuptial agreements, legal separation, divorce, child custody, visitation, child support, equitable distribution, and alimony, among others. Family law issues can cause a lot of stress and many sleepless nights. We have created this family law and divorce FAQ to answer some of the more common questions we hear regarding family law.

How does divorce work in North Carolina?

The state of North Carolina requires the parties be separated, meaning they are living apart with no intention of reconciling, for a minimum of 12 months. Once the 12 months have passed, either party may file for divorce to legally end the marriage.

Does this mean if I want a divorce I have to move out?

Generally speaking, the party who initiates the separation is the one to leave the marital residence, but there are exceptions. Under North Carolina law, there are six specific situations (including adultery, abuse, and excessive use or drugs or alcohol) where an innocent spouse can initiate an action for “divorce from bed and board.” If decided in your favor by the court, your spouse could be forced to leave the marital residence. If this is not the case in your situation, you would need to be the one to leave.

Do we have to have a Separation Agreement?

If you and your spouse can agree on the terms of the separation, a Separation Agreement is a good idea. This agreement is a legal contract between you and your spouse intended to define the terms of the separation and protect your rights. The agreement formally documents the starting date of the separation. The document also spells out the terms of any spousal support, child support, visitation rights, medical insurance coverage payments, sale of the marital residence, how federal and state tax deductions will be taken, distribution of assets, etc. In a situation where one party will receive spousal support and is relying on that income to rent an apartment, he or she may need to produce a copy of the agreement in order to qualify for the lease. The document is good protection for both parties. A Separation Agreement may not be possible if you and your spouse cannot agree to terms.

What if we cannot agree on terms of the separation?

If you can your spouse cannot come to terms, there are a couple of options. You have the choice of involving a mediator to meet with both parties and attempt to resolve the differences and come to terms that both parties can agree upon. If terms still cannot be agreed upon, court action may be required.

How long does it take for a divorce?

This depends on the period of separation and whether children are involved. In North Carolina, the parties must have been separated for one year before an absolute divorce can be granted. In cases where the parties have lived apart for one year but do not have a legal separation agreement, we would file a Complaint and have it served on the other party. That party would then have 30 days to file an answer to the complaint. Once an answer is filed and if the divorce is not contested, the time frame is usually 4-5 weeks to obtain the final divorce decree.

Can I file the paperwork for my divorce myself?

Yes, but you should consult with an attorney. If you attempt to file the paperwork and do not include something of significance such as equitable distribution or child custody/visitation issues, then when the final decree is signed by the Judge there could be problems in the future asserting your rights in those areas.

Who needs a pre-nuptial agreement?

Pre-nuptial agreements are typically created in cases where one or both parties to be married have a large number of assets. The agreement is designed to protect the parties in the event the marriage ends in divorce. These agreements are all unique and may be complex in nature. If you are not certain if you need a pre-nuptial agreement, you may wish to consult with an attorney and discuss the specifics of your situation.

Need to learn more? Contact a family law attorney at Brinkley Walser Stoner today to schedule an appointment.