Divorce can be a difficult and emotional experience for anyone. When a marriage comes to an end, it is important to understand the legal grounds for divorce in North Carolina. If you or your spouse is considering filing for divorce, knowing the rules and laws that govern the process can help you better navigate what is often a challenging time. North Carolina has specific requirements that must be met in order to file for divorce, and understanding these requirements is crucial in ensuring a smooth legal process. At, Phillips & McCrea, PLLC, we are here to guide you through the legal process and help you navigate the complexities of your case.
In North Carolina, there are two primary grounds for divorce: divorce based on separation and divorce based on incurable insanity. These are the legal reasons that the courts recognize for dissolving a marriage. In this page, we will explore these two grounds in detail, along with other important aspects of divorce law in North Carolina, including property division, child custody, and spousal support.
Separation as a Ground for Divorce
The most common ground for divorce in North Carolina is separation. In order to file for divorce based on separation, you and your spouse must have been living separately for at least one year. This means that you and your spouse must have maintained separate residences and have not been living together during this time. The one-year separation period is a strict requirement in North Carolina, and you cannot file for divorce until the full year has passed. It is also important to note that during this separation period, at least one of the spouses must intend for the separation to be permanent.
Living separately does not necessarily mean living in different cities or states. It simply means that the two of you must maintain separate households. If you and your spouse try to reconcile and move back in together during the separation period, the clock resets, and you must begin the one-year separation period again. This one-year requirement can feel lengthy, but it is meant to give both parties time to reflect on their decision and to attempt to work out their differences if possible.
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Incurable Insanity as a Ground for Divorce
While separation is the most common ground for divorce in North Carolina, there is another, less frequently used ground for divorce known as incurable insanity. This ground for divorce applies in cases where one spouse has been declared legally insane and has been institutionalized or under medical care for at least three years. In order to file for divorce on the grounds of incurable insanity, the other spouse must be able to provide evidence that the mental illness is permanent and that there is no hope for recovery.
Filing for divorce on the grounds of incurable insanity can be a more complex process than filing for divorce based on separation. It often requires medical testimony and records to prove the insanity and to show that the condition is not curable. This type of divorce is rare, but it is an option for spouses who are dealing with the challenges of a partner’s severe mental illness.
Residency Requirements for Divorce in North Carolina
In addition to meeting the grounds for divorce, there are residency requirements that must be met in order to file for divorce in North Carolina. At least one spouse must have been a resident of the state for at least six months prior to filing for divorce. This means that if you recently moved to North Carolina, you may need to wait until you have lived in the state for six months before you can file for divorce.
If both spouses live in North Carolina, the residency requirement is typically straightforward. However, if one spouse lives in another state, it is still possible to file for divorce in North Carolina as long as the other spouse meets the residency requirement. Once the residency requirement is met, the divorce process can begin.
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Property Division in North Carolina
When a couple files for divorce, one of the major issues that must be addressed is the division of property. In North Carolina, the courts follow the principle of equitable distribution when dividing marital property. This means that the court will divide the property in a way that is fair, but not necessarily equal. The court will take into account various factors when determining how to divide the property, including the length of the marriage, the financial situation of each spouse, and the contributions that each spouse made to the marriage, both financially and non-financially.
Marital property includes any property that was acquired during the marriage, regardless of whose name is on the title. This can include real estate, vehicles, bank accounts, retirement accounts, and personal belongings. Property that was owned by one spouse before the marriage is typically considered separate property and is not subject to division.
The division of property can be a contentious issue in many divorces, especially when there are significant assets involved. In cases where the couple cannot agree on how to divide their property, the court will make the final decision based on the principle of equitable distribution.
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Child Custody and Support
For couples with children, one of the most important aspects of a divorce is determining child custody and support. In North Carolina, the courts make decisions about child custody based on what is in the best interest of the child. This means that the court will consider various factors, such as the child’s relationship with each parent, the stability of each parent’s home, and the child’s needs, in order to make a decision that promotes the child’s well-being.
There are two types of custody that the court may award: legal custody and physical custody. Legal custody refers to the right to make important decisions about the child’s upbringing, such as decisions about education, healthcare, and religion. Physical custody refers to where the child will live. The court may award joint custody, where both parents share legal and physical custody, or sole custody, where one parent has primary custody of the child.
In addition to child custody, the court will also determine child support. Child support is a payment made by the non-custodial parent to help cover the costs of raising the child. The amount of child support is determined based on a set of guidelines that take into account the income of both parents, the number of children, and the needs of the child.
Spousal Support (Alimony)
Another issue that may arise during a divorce is spousal support, also known as alimony. In North Carolina, spousal support may be awarded to one spouse if there is a significant financial disparity between the two parties. The purpose of spousal support is to provide financial assistance to the spouse who may be financially disadvantaged as a result of the divorce.
The court will consider various factors when determining whether to award spousal support, including the length of the marriage, the financial resources of each spouse, and the contributions that each spouse made to the marriage. Spousal support may be awarded on a temporary or permanent basis, depending on the circumstances.
The Divorce Process in North Carolina
Once the grounds for divorce and other issues such as property division, child custody, and spousal support have been addressed, the divorce process can move forward. In North Carolina, the process begins with one spouse filing a complaint for divorce in the appropriate county court. The other spouse must then be served with the divorce papers and given the opportunity to respond.
If both spouses agree on the terms of the divorce, the process can proceed relatively smoothly. However, if there are disputes over issues such as property division or child custody, the divorce may take longer to resolve. In some cases, the court may require the parties to attend mediation in an effort to reach an agreement. If mediation is unsuccessful, the court will hold a trial, and the judge will make the final decisions regarding the issues in dispute.
Once all issues have been resolved, the court will issue a final divorce decree, officially dissolving the marriage. At this point, both parties are free to move on with their lives.
If you are considering filing for divorce in North Carolina, it is important to have a knowledgeable legal team by your side. The process can be complicated, and having the right guidance can make all the difference in ensuring that your rights are protected and that you receive a fair outcome. At Phillips & McCrea, PLLC, our dedicated team of attorneys is here to help you navigate the legal process and achieve the best possible result. We understand that divorce can be a difficult time, and we are committed to providing compassionate and effective representation. Contact Phillips & McCrea, PLLC today to schedule a consultation and learn more about how we can assist you with your divorce case.