HOW TO GET DIVORCED IN NORTH CAROLINA

DISCLAIMER:  This guide has been prepared for general information purposes and is not legal advice.  Legal advice is dependent on the specific facts and circumstances of each situation.  The information in this guide cannot take the place of competent legal counsel tailored to your specific situation.

This guide will walk you through the technicalities of how to get divorced in North Carolina.    You may have additional issues that need to be addressed prior to filing divorce.  Questions that need to be answered:  1) Do you have minor children?  2) Is there marital property, such as real estate, retirement accounts, personal property or other assets, to divide?  3)  Is one spouse in need of financial support from the other spouse?  If you answered yes to any of these questions, you should not get divorced until you have consulted with a qualified family law attorney as many rights, if not preserved, are waived upon entry of the absolute divorce judgment.

Step One – Separation   The first step in getting divorced in North Carolina is to be separated.  North Carolina is a no-fault divorce state.  This means that there does not need to be wrong doing by either party.  The only requirement in North Carolina to file for divorce is that the parties be separated for one year.  In order to be separated, one party must physically move out of the marital home with the intent not to return.  This is the only requirement.  There is no requirement to have a written separation agreement in order to be separated.  The clock starts running the day one spouse moves out of the house.  The divorce action can be filed on the next day after one year has passed.

Step Two – Summons & Complaint   After one year has passed, and you are ready to file for divorce, you will need to complete the proper paperwork.  You will need a Domestic Civil Action Coversheet (form AOC-CV-750), the summons (form AOC-CV-100) and the complaint for absolute divorce.  There is no form complaint, but there is an example complaint in the do-it-yourself packet you can get from the county clerk’s office.  You will need one copy of the Domestic Civil Action Coversheet, four copies of the Summons on yellow paper, and three copies of your complaint.

Step Three – Complaint Requirements   N.C.G.S. §50-8 requires that divorce complaints be verified.  This means that your complaint will need to contain a signed, notarized statement swearing that the information you have provided is true or that you believe it is true.  The other requirements of a divorce complaint are a statement stating that you have been a resident of the State of North Carolina for the previous six months, the county and state of residence of the Defendant, the date of the marriage, the date of separation, that the parties intended to separate and to remain apart permanently, and whether or not any children were born of the marriage.  If there are children, the complaint must include their names and dates of birth.

Step Four – Filing and Service   The divorce documents should be filed in a county where at least one of the spouses is a current resident.  Once filed, you will need to have the papers served on the Defendant.  Divorce papers should be served according to Rule 4 of the North Carolina Rules of Civil Procedure.  Generally, there are two methods to effect service under Rule 4, certified mail or county Sheriff.  Typically if the parties have agreed to divorce and are both interested in completing the divorce, certified mail will probably be sufficient.  Problems arise when the Defendant is not cooperating.  People who are upset about getting divorced typically will not sign for certified mail.  In these cases service via the Sheriff is necessary.  The cost to have the county Sheriff serve divorce papers is $30.00 in Wake County.  If your spouse cannot be served by either of these methods, or cannot otherwise be found, please consult with a divorce attorney in your area.

Step Five – Proof of Service   If the Defendant is served via Sheriff, you will not need to file anything with the court to prove the Defendant has been served as the Sheriff’s office will get the executed Summons to the court.  However, if you serve the Defendant via certified mail, once you receive the signed green card back from the post office you will need to fill out and file with the court an Affidavit of Service (form AOC-CV-662).  Most counties include a copy of the Affidavit in their do-it-yourself packets.  Make two copies of your Affidavit of Service.  The court will keep the original, you will need to mail one to the Defendant, and the third copy is for your file.  Also, make copies of the front and back of the green card, and attach a copy to each Affidavit of Service.

Step Six – 30 Days to Answer   You must wait 30 days from the date the Defendant was served to provide the Defendant with time to file an Answer to your Complaint.  In many divorce cases no Answer is ever filed, but it really depends on the circumstances.  The clock starts on either the date the Sheriff writes on the Summons that a deputy handed the papers to the Defendant, or on the date the Defendant signed the green card for the certified mail at the post office.

Step Seven – Schedule Divorce Hearing   If the Defendant files an Answer, I recommend you consult a divorce attorney in your area.  Assuming the Defendant does not file an Answer, once 30 days has passed you will need to file a Motion of Summary Judgment, Notice of Divorce Hearing (form WAKE-DOM-23) and an Affidavit – Servicemembers Civil Relief Act (SCRA).  In Wake County, divorces are heard every Friday in Courtroom 5B.  Divorces handled by attorneys begin at 9:00am and Pro Se divorces begin approximately at 10:00am.  You must schedule your divorce hearing at least 10 days from the date you file for summary judgment.  Do not schedule to quickly after filing for summary judgment or your divorce will be denied.  I recommend you visit the clerk’s office when you are ready to schedule your divorce hearing.  The clerk will schedule your divorce hearing and prepare the Notice of Divorce Hearing.

Step Eight – Divorce Judgment   On the date of your divorce hearing your will need several copies of your Judgment of Absolute Divorce.  The judge will sign the Judgment upon granting your Absolute Divorce.  You will receive a certified copy of the judgment, the court will keep a copy, and you will mail the third copy to the Defendant.

Final Note   Some of the documents I mention above are not forms and must be prepared.  If you are unable to prepare these documents I recommend you contact a divorce attorney.  Below is a checklist you can use as you go through the process of filing for divorce.  Good luck!

DIVORCE CHECK LIST

  1. Complete complaint, must be verified. One original, make 2 copies (need 3 copies of everything—one for each party and one for court.  Make an extra if serving via Sheriff.
  1. Complete Domestic civil action cover sheet. I usually just make an extra copy for my records.
  1. Complete summons—3 copies on yellow paper.  If you are serving by sheriff, make 4 copies because 2 will go to the sheriff’s office.
  1. Go file it, and serve by certified mail or sheriff (according to NCRCP 4).
  1. When you receive green card back or confirm with sheriff that party has been served, complete affidavit of service, make 3 copies, and make front/back copies of green card (3 copies).  Count 30 days from date of service, then
  1. Prepare and File Affidavit of Service, then
  1. Complete motion for summary judgment, notices of hearing
  1. Take affidavit of service, MSJ, SCRA, NOHs to court to file.  Pro Se divorces are heard on Fridays at 10am, and schedule it at least 10 days after your MSJ.  Then serve a copy of each of these docs via regular mail (NCRCP 5) on the Defendant.
  1. Before your hearing, complete 3 copies of judgment, and take them with you to court, go ahead and pre-date them for the judge so all he/she has to do is sign.
  1. Once the divorce judgment is granted, return file to courtroom clerk along with completed certificate of divorce.  Be sure to get at least one certified copy, and you are all done.