Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in North Carolina have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
GROUNDS FOR DIVORCE
North Carolina is an absolute divorce state which means all issues related to alimony, child custody, child support, and property distribution are handled by the court. After a person is granted an absolute divorce, that individual is free to remarry.
SEPARATION WAITING PERIOD – ONE YEAR
Spouses must have lived separate and apart for one year. Grounds for divorce must 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.
RESIDENCY REQUIREMENTS
To file for a divorce, either spouse must have been a resident of the State of North Carolina for at least six months preceding the complaint filing. The divorce proceedings will be in the county where either party resides.
MEDIATION-COUNSELING REQUIREMENTS
Whenever an action involves a contested issue as to the custody or visitation of a minor child, the matter, where there is a program established, shall be set for mediation of the unresolved issues as to custody and visitation before or concurrent with the setting of the matter for hearing unless the court waives mediation.
PROPERTY DISTRIBUTION
North Carolina is an equitable distribution state. There shall be an equal division by using the net value of the marital property and the net value of the divisible property 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 duration of the marriage and the age and physical and mental health of both parties.
- The need of a parent with custody of children of the marriage 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 value of separate property which 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 date of valuation.
- 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.
ALIMONY MAINTENANCE SUPPORT
Either party may petition for alimony. The court shall exercise its discretion in determining the amount, duration, and manner of payment of alimony. 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’S LEGAL NAME
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 who have that husband’s surname.
CHILD CUSTODY
Custody is determined based on what is in the best interests of the child. 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.
Suppose a party is absent or relocates with or without the children because of an act of domestic violence. In that case, the absence or relocation shall not be a factor that weighs against the party in determining custody or visitation.
NORTH CAROLINA CHILD SUPPORT LAWS
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.
SAME-SEX DIVORCE –UPDATE:
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges. (For more information, visit ProCon.org).
