Navigating the Divorce Process

Navigating the divorce process can be stressful and, at times, overwhelming. Filing for absolute divorce in North Carolina can be done without an attorney, as explained below, but life is hard, and people lead busy lives. Why not let the family law attorneys at Smith Debnam help you make this process less stressful and overwhelming?

A Quick Overview of the Legal Grounds for Divorce in NC

North Carolina is a no-fault divorce state. Parties are eligible to file for divorce if they meet the following requirements:

• You and your spouse have lived separate and apart for one year and one day. This means separate households (i.e., living under separate roofs). Your separation does not have to be memorialized in a written agreement.

• One of the spouses must have the intent for the separation to be permanent. This intent does not have to be communicated to the other spouse; it merely has to be formed.

• Either you or your spouse must reside in North Carolina and must have lived in North Carolina for six (6) months before the divorce case is filed.

The Divorce Process in NC: Six Steps to Expect

STEP ONE: File the lawsuit.

To file for divorce, you must first file the following documents in the county in which you or your spouse reside: a Civil Summons, a Complaint for Absolute Divorce, a Domestic Civil Action Cover Sheet, and a Service Members Civil Relief Act Affidavit (SCRA Affidavit). Many counties have “self-divorce” packets where people can file for divorce themselves. Please note the Complaint for Absolute Divorce must be verified (signed in front of a notary public) in order to be valid.  

STEP TWO:  Pay the required filing fee of $225.00.

STEP THREE: Serve the lawsuit on your spouse.

After the documents are filed, you must serve all of the documents on your spouse.  Service must be made by paying a fee to have a sheriff serve your spouse personally, by certified mail, or by designated delivery service such as UPS or FedEx. If using certified mail or a designated delivery service, you must file a document with the court that shows proof of service (e.g., delivery receipt). If you cannot locate your spouse, you may be able to serve by newspaper publication. Regular mail or hand delivery is not a valid method of service. If your spouse does not reside in North Carolina, you must follow the rules of service for the state where he/she resides.

STEP FOUR:  Periodically Check Service.

It is important to follow up from time to time to make sure your spouse is served. Otherwise, you run the risk of your Civil Summons expiring, which means you will have to take steps to keep your lawsuit “alive,” or you will have to start the process all over. Again, this is stressful and time-consuming. Attorneys at Smith Debnam can do all of the hard work for you.

STEP FIVE:  Schedule the Divorce Hearing.

Once served, your spouse has thirty (30) days to respond to the lawsuit. After your spouse files an Answer or after thirty (30) days if no Answer has been filed, then a divorce hearing can be set. You will need to determine when divorces can be set based on the county in which you are filing; every county is different. When you obtain a date, a Notice of Hearing must be served on your spouse.  If your spouse has been officially served with the initial complaint (see Step Three), this notice can be served by regular mail. You will need to ensure that you also include a certificate of service showing the Court when you mailed this notice of hearing to your spouse.

On the day of the divorce hearing, you need to make sure you have prepared a divorce judgment (at least three copies) for the judge to sign and a Certificate of Absolute Divorce, which is sent to the Department of Vital Records. 

A notice of hearing, divorce judgment, and Certificate of Absolute Divorce documents are often available through a county’s “self-divorce” packet. If not, you will be responsible for figuring out how to prepare these. Please be mindful that with the launch of eCourts in most North Carolina counties, all legal filings are done electronically. The days of going to the clerk’s office to file are over. Make sure you are prepared to file electronically.

At the hearing, you will need to be prepared to present your case to the judge. Make sure to know all of the relevant facts to tell the judge:  date of marriage, date of separation, were any children born during the marriage, have you and your spouse lived separate and apart for one year and one day with the intent to end the marriage. Remember, as long as you have lived separate and apart for one year and one day, your spouse cannot stop a divorce from happening.

STEP SIX:  Send your spouse a copy of the judgment via regular mail once your divorce is finalized. 

Filing for divorce may seem simple, but it is easy to mess up if you do not follow the proper steps. Also, the entry of an absolute divorce terminates certain legal rights like equitable distribution and alimony. Having an attorney handle this process for you ensures that your legal rights are preserved (if applicable) and that it will be done correctly with little to no stress. The family law attorneys at Smith Debnam are here and able to help.