What is different about a North Carolina divorce?
Divorce in North Carolina appears confusing at first glance, so it’s important to understand what you’re getting into before pursuing one. Every state has different laws when it comes to divorce and North Carolina is no different. In order to obtain an NC divorce, you need to have resided in the state for at least six months and you’ll also have to live separately from your spouse for a full year before the divorce can be finalized. For that reason, you’ll need to make absolutely sure this is something you want before pursuing it.
What should I do before getting a divorce?
These are the five things you must do before you act on any thoughts you have about divorce. These steps are specific to NC divorce laws, but can be applied to divorce in most states. It’s important to be certain that you have done the things you need to do to feel good about your decisions. With that said, here are the top five things to do before you split from your spouse:
1. Talk to a Marriage Counselor or other professional who may be able to help you save your marriage.
Even if you don’t think there’s hope for the marriage, “divorce counseling” can help you discover what went wrong, how to cope, and how to pick up the pieces and go on. Don’t wait for your spouse to participate. If you don’t know how to find a qualified counselor, our firm will be glad to recommend. You can also check out the directory of professionals at stayhappilymarried.com, which is a great resource for finding counselors in North Carolina and surrounding states. Your employment, social or religious contacts might also provide leads.
2. Talk to an attorney before you do anything.
Even if you don’t end up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information as you can before you even discuss divorce with your spouse. There’s a lot to know about an NC divorce. Our laws are complex and even the simplest situation can be very confusing to families already in distress. Actions you take now may very well affect the outcome of your divorce (see #3) and you need to understand your options ahead of time… not some time down the road when it may be too late to alter the outcome. Use this page to find attorneys who are well versed in the intricacies of North Carolina divorce laws.
3. Do not move out of the marital home without talking to an attorney first.
If you leave the house, you may be unable to return until after a court divides the property according to standard NC divorce laws. This process will take more than a year. The best advice is to stay in the house until after you talk with an attorney unless your spouse is violent. If your spouse is violent, you must take all steps necessary to protect yourself and your children.
4. If you have been involved in any extramarital affairs, talk to a lawyer before you discuss this with your spouse or anyone else.
In this case, honesty may not be the best policy. In addition to the fact that adultery is illegal in the state of North Carolina, admission of an affair can have other dire consequences in an NC divorce. If your spouse is a candidate for alimony, any illicit sexual behavior on your part could end up costing you thousands in additional alimony payments.
Although an alimony claimant is not required to prove the other spouse is at fault in order to be entitled to postseparation support or alimony, the alimony statute addresses the concept of marital fault and permits a judge to consider evidence of fault in fixing the amount of alimony to be awarded, if any.
Marital fault in North Carolina is enumerated in the statute as follows: 1. Illicit sexual behavior (meaning “acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engage in by a spouse with someone other than the other spouse”).
5. Take concrete steps to safeguard your assets before you and your spouse begin discussing divorce.
One of these steps is to take possession of certain assets during separation, especially those assets you wish to be using, such as furniture and vehicles, and those assets that might be liquidated by your spouse, including precious gems and stones, other collectibles, cash, and bearer bonds.
Another self-protective step before pursuing an NC divorce is to file what is known as a Lis Pendens in the Deeds Office of any county where you and/or your spouse own real property. This can be used in any US state and is not just limited to North Carolina. The lis pendens puts third parties on notice of your claim to have an interest in the real estate against which the lis pendens is docketed. The lis pendens is basically a notice of pending litigation that may affect real property. A properly recorded and served lis pendens clouds the title to the property, preventing an effective sale of the property behind your back. The rules regarding a lis pendens contain very specific requirements, all of which are spelled out in section 1-116 and the following sections of the North Carolina General Statutes.
A third possible step to protect the assets of your marriage before obtaining a divorce in NC is to get an injunction restraining your spouse from transferring or otherwise disposing of any property covered by the restraining order. Your attorney can also use an injunction to get your separate property returned to you, where your separate property is in the possession of your spouse and the spouse refuses to give it to you. North Carolina’s equitable distribution statute also provides a means for you to obtain an interim distribution of marital property, pending a final resolution of the property matter. Such an interim allocation could, for instance, give you much needed funds on which to live. Other protective measures you might consider in your divorce planning include:
- protecting your own credit rating by freezing or closing joint cards and by blocking your spouse’s access to other joint credit such as a home equity loan;
- closing joint bank accounts and opening accounts in your own, individual name;
- changing the name of the responsible party on utility and other bills; and
- spending where possible your spouse’s separate property first, marital property next, and your own separate property last.
[alert type=”info”]While this list will help you get started on the right track, it is by no means a complete list of all the things you need to do and know if you are considering a divorce. For more information about the rights and duties of separating and divorcing husbands and wives under North Carolina law, explore the rest of this site. You’ll find a complete law library, downloadable divorce forms, a legal fee calculator, a child support calculator, lists of professionals who can help you and stories from people just like you who have survived divorce all over the state of North Carolina.[/alert]
