Frequently Asked Questions about North Carolina Separation and Divorce

The following answers some key questions that we often hear from prospective clients. These are very general answers, which might not apply to your unique situation. To learn about the legal options best suited to your particular case, please contact our office to arrange a consultation.

What are the requirements for getting a divorce in North Carolina?
How does the process for separation and divorce typically work?
Do I really need an attorney to get a divorce?
How much will it cost to have an attorney represent me in my separation and divorce?

Q. What are the requirements for getting a divorce in North Carolina?

A. There are two grounds for obtaining an absolute divorce in North Carolina:

separation for one year, or
incurable insanity or mental illness lasting three years

Most North Carolina divorces are routinely granted on the basis that the spouses lived in separate residences for a full year, with at least one spouse having the intent to permanently end the marriage. Less frequently, divorce is granted to spouses who lived apart for three years due to the incurable mental illness of one spouse.

There is also a residency requirement. One of the spouses must have lived in North Carolina for six months prior to filing for divorce. Either spouse can then initiate the divorce action by filing a Complaint with the court in the county where one spouse lives. The Complaint must be served (usually by certified mail or the sheriff) on the other spouse, who then has 30 days in which to file an Answer. It typically takes between 45-60 days from the date the opposing party is served for the divorce to be finalized. The divorce becomes effective when the judge or clerk signs a judgment that is then filed with the Court.

But be careful . . . the divorce judgment ends the marriage, but it does not determine numerous critical issues that should be decided before the divorce is final—where the children live, who keeps the house, whether spousal support is paid. In fact, the court’s entry of a divorce judgment cuts off your right to request alimony and the division of marital property and debts. If spousal support or division of the marital estate remains an issue at the time you are eligible for a divorce, you should see an attorney as soon as possible to make sure you do not inadvertently waive your right to request the Court to decide these issues.

Q. How does the process for separation and divorce typically work?

A. There are a variety of ways in which divorcing couples can resolve the thorny issues of child custody, child support, the equitable distribution of property, and other matters involved in ending a marriage:

Negotiated settlement: Many divorcing couples, with the assistance of their attorneys, are able to negotiate a private contract, or Separation Agreement, that stipulates the arrangements for their living apart and resolves the other issues entailed in their separation, such as child custody and support, the division of property, and spousal support. The Separation Agreement is legally enforceable and may later be adopted in a court decree. Many couples prefer the privacy and control of negotiated settlements as compared to hashing things out openly in court and having a judge decide their parenting responsibilities and financial arrangements. For couples willing to amicably work together to settle their differences, private negotiations is a very cost-effective and time-expedient way to accomplish some or all of their divorce objectives.

Collaborative law: The collaborative process is an increasingly popular method of negotiating the settlement of divorce issues. In this process, the participants sign an agreement to work together respectfully, honestly, openly, and in good faith. No one may threaten to go to court, and if a party ultimately feels that court is the only alternative, the collaborative process terminates and both spouses must hire new lawyers to litigate their case. It should be noted that good family law attorneys will incorporate the methods used in collaborative divorce as much as possible even if the parties do not agree to the “collaborative law” process per se.

Alternative Dispute Resolution: Very often, the emotional intensity of the issues at stake makes it helpful to hire a neutral third party to conduct the divorce negotiations.

Mediation: A mediator is a professionally trained neutral third party who facilitates communication between the spouses and helps them reach a mutually satisfying agreement. Although the mediator may make compromise suggestions, the mediator does not dictate the terms of the agreement. Rather, the mediator helps the couple explore, discuss, and understand their options and responsibilities in order to reach an informative decision. The court will often refer a child custody case to mediation to help couples craft a parenting agreement that addresses the custody, care and visitation of children. Mediation can be a very beneficial process because it provides a structured format for reaching decisions, yet the ultimate decision making remains under the control of the divorcing parents.

Arbitration: Arbitration is a little different from mediation. Although an arbitrator, like a mediator, is a trained neutral third party, an arbitrator acts like a judge to hear both sides of the dispute and make a binding decision. Because arbitration is conducted in a private business office and not constrained by strict evidentiary rules, it is often a cheaper, more relaxed, and easier to schedule alternative to litigating disputes in a courtroom.

Litigation: Sometimes the couple’s past history makes settlement negotiations difficult or impossible. It may be necessary to employ court procedures to compel the cooperation of the other party and obtain their truthful disclosure of financial and other information. Although we encourage couples to work out their differences through settlement negotiations, attorney Mary Hilbert is a seasoned litigator who is well prepared to fight for your rights in court.

Q. Do I really need an attorney to get a North Carolina divorce?

You are not legally required to have an attorney, but it is usually a mistake to try to go it alone. You risk losing property and other valuable rights that might otherwise be available to you. You may also lose substantial time and money trying to later undo the decisions that were made, and it may be impossible to undo decisions that are included in a court’s judgment. Even if you obtain forms from the court or off the internet, court personnel are prohibited from giving you legal advice or helping you complete the forms. Your spouse’s attorney does not represent you and, in accordance with ethical standards, is not allowed to give you legal advice. Likewise, a mediator must remain neutral and cannot give legal advice to your specific advantage.

An experienced family law attorney will help you formulate a realistic plan for your separation and divorce. Whether you participate in negotiations in or outside of court, an attorney will ensure that you are treated fairly and will give a strong voice to your desires on parenting, living arrangements, and other matters. Your attorney will help safeguard your access to the marital residence, bank accounts, vehicles and other assets before, during, and after your separation. And if things turn ugly, an attorney can use the power of law to protect your children and assets, move your case forward, and compel the cooperation of the other parties. Do not underestimate the power and support that comes from having an experienced family law attorney on your side.

Q. How much will it cost to have an attorney represent me in my separation and divorce?

Customarily, attorneys charge a flat fee for the initial consultation and then work at an hourly rate thereafter. The total cost of your legal fees depends upon the degree of cooperation between the parties and the complexities of the issues raised in your particular circumstances.

Attorney Mary Hilbert has been practicing North Carolina family law for almost a decade, so she has a very good idea as to how much time and money will be involved in various divorce scenarios. She conducts a thorough initial consultation that allows her to give a very realistic estimate of the total legal fees you will incur in your particular separation and divorce. Her knowledge and experience guards against the waste of your time and money, and she gives clients “homework assignments” that help them save money. She keeps you updated on your legal options so that you control the cost of your case. Please schedule a meeting with Ms. Hilbert to learn about the legal alternatives and expenses involved in your situation.

Do you have more questions about your divorce, separation, or other family law issue?

Please contact our office to schedule a consultation with Ms. Hilbert. We are here to help!