State Of North Carolina Divorce Laws

Divorce & Family Law Summary

North Carolina’s divorce laws and processes are complex and differ from other states. Making the outcome of your divorce more difficult to predict, especially if you have never gone through the divorce process.

Divorce is life-changing, and not knowing the law can significantly impact the outcome of your divorce. From the mandatory one-year separation period to the state’s equitable distribution of marital property, being informed about the law will help you make informed decisions about your future. It will also protect your rights and avoid costly and time-consuming disputes.

Most importantly, knowing the divorce laws will help you set realistic expectations and deal with the escalating stress and anxiety associated with the divorce process.

About This Article

This article will provide you with a summary of North Carolina’s major divorce laws, including their:

• Residency Requirements
• Grounds for Divorce
• Legal Separation
• Property Distribution
• Child Custody
• Child Support
• Alimony – Support in North Carolina
• Spouse Legal Name Change
• Mediation

North Carolina Residency Requirements

To file for a divorce, either spouse must have been a North Carolina resident for at least six months prior to the filing of the complaint. The divorce proceedings can be filed within the county where either party resides.

Grounds for Divorce In North Carolina

The grounds for divorce in North Carolina are stated in the North Carolina General Statutes, Chapter 50, Article I.

North Carolina recognizes two types of divorce

1. Absolute Divorce

An absolute divorce is a complete and final termination of the marriage.

The grounds for absolute divorce in North Carolina are:

One-year Separation: The spouses must have lived separate and apart for at least one year, with the intention of ending the marriage. This is the most common ground for divorce in North Carolina.

Incurable Insanity: If one spouse is incurably insane, the other spouse may file for divorce after a three-year separation.

2. Divorce from Bed and Board:

A divorce from bed and board is a partial divorce that does not completely terminate the marriage. It is often referred to as a “legal separation.”

The grounds for divorce from bed and board include:

• Abandonment: One spouse abandons the other without justification or intent to return.
• Malicious turning out: One spouse is forced to leave the marital home due to the other spouse’s cruel or violent behavior.
• Cruel or barbarous treatment: One spouse is subjected to physical or emotional abuse by the other spouse.
• Indignities: One spouse is subjected to indignities, such as public humiliation or embarrassment, by the other spouse.
• Excessive use of alcohol or drugs: One spouse’s excessive use of alcohol or drugs makes the marriage unbearable for the other spouse.
• Adultery: One spouse commits adultery, which is defined as voluntary sexual intercourse with someone other than the spouse.

Legal Tip

A divorce from bed and board does not completely terminate the marriage. Therefore, the spouses are not free to remarry. To obtain an absolute divorce, the spouses must still meet the one-year separation requirement or establish incurable insanity.

Legal Separation

Spouses must have lived separately and apart for one year, and grounds for divorce (see above) have existed for at least six months before filing. A legal separation judgment from a North Carolina court resolves all issues around children and property that a divorce would, even if the parties were still legally married.

Note: A divorce from bed and board (separation) can be converted to an absolute divorce after one year of separation if you and your spouse have not reconciled.

North Carolina Property Distribution

The division of marital property in North Carolina is based on equity and fairness.

The marital property’s net value and the divisible property’s net value shall be divided equally unless the court determines that an equal division is not equitable.

The court considers the following factors when determining the property distribution:

• The income, property, and liabilities of each party;
• Any obligation for support arising out of a prior marriage.
• The marriage’s duration, age, and physical and mental health of both parties.
• The need for a parent with custody of the marriage’s children to occupy or own the marital residence and to use or own its household effects.
• The expectation of pension, retirement, or other deferred compensation rights that are not marital property.
• Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having a title, including joint efforts or expenditures and contributions and services, or lack thereof, as a spouse, parent, wage earner or homemaker;
• Any direct or indirect contribution made by one spouse to help educate or develop the career potential of the other spouse.
• Any direct contribution to an increase in the value of separate property that occurs during the marriage.
• The tax consequences to each party would have been incurred if the marital and divisible property had been sold or liquidated on the valuation date.
• Acts of either party to maintain, preserve, develop, or expand; or to waste, neglect, devalue or convert the marital property or divisible property, or both, during the period after separation of the parties and before the time of distribution.
• Any other factor which the court finds to be just and proper.

The court may use various methods to distribute marital property, including:

• In-kind distribution: Dividing the property, such as dividing a piece of real estate.
• Monetary award: Awarding one spouse a sum to compensate for their share of the property.
• Property transfer: Transferring ownership of property from one spouse to the other.

Child Custody in North Carolina

The division of child custody in North Carolina is determined based on the child’s best interests.

In making the determination, the court shall consider all relevant factors, including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party, and shall make findings accordingly.

Child Support in North Carolina

The court shall determine the amount of child support payments by applying the presumptive guidelines. If, after considering the evidence, the court finds by the greater weight of the evidence that the application of the procedures would not meet or would exceed the reasonable needs of the child considering the relative ability of each parent to provide support or would be otherwise unjust or inappropriate the court may vary from the guidelines. 

Watch The Law Firm of Dummit Fradin Explain How Child Support is Calculated in North Carolina:

Alimony – Support in North Carolina

Either party may petition for alimony. The court shall exercise its discretion in determining the amount, duration, and manner of alimony payments. The time of the award may be for a specified or indefinite term.

In determining the amount, duration, and manner of payment of alimony, the court factors in the following types of considerations:

• The relative earnings and earning capacities of the spouses
• The ages and the physical, mental, and emotional conditions of the spouses
• The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others
• The duration of the marriage
• The contribution by one spouse to the education, training, or increased earning power of the other spouse;
• The extent to which the earning power, expenses, or financial obligations of a spouse will be affected because of serving as the custodian of a minor child
• The standard of living of the spouses established during the marriage
• The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet their reasonable economic needs
• The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support
• The property brought to the marriage by either spouse
• The contribution of a spouse as a homemaker
• The relative needs of the spouses
• Tax ramifications of the alimony award
• Any other factor relating to the parties’ economic circumstances that the court finds to be just and proper

Spouse Legal Name Change

A woman, upon application to the clerk of court, may change her name to:

(1) Her maiden name; or

(2) The surname of a prior deceased husband; or

(3) The surname of a prior living husband if she has children with that husband’s surname.

Note: Should you still need to legally change your name after the divorce, there are legal services that can assist you.

Mediation

When Mediation is Necessary: Whenever an action involves a contested issue regarding the custody or visitation of a minor child, the matter, where a program has been established, shall be set for mediation of the unresolved issues before or concurrent with the setting of the matter for hearing unless the court waives mediation.

This summary of North Carolina divorce law provides you with a starting point. However, it is not intended to substitute for seeking advice from a local and verified divorce lawyer who can carefully evaluate your case’s specific facts and legal issues in light of your goals.

(800) 992-9457

North Carolina Family Court System

Trial courts, or District Courts, have jurisdiction over family law cases. In addition, North Carolina currently has Family Court programs in 15 districts covering 27 counties:

About District Courts

Family Courts 

Sources and References

North California Divorce Statutes

Divorce FAQ North Carolina Courts

Cornell Law Information Institute

Social Services Child Support Guidelines

Dummit Fradin Attorneys at Law