Divorce in North Carolina

North Carolina is considered a "no-fault" divorce jurisdiction. That means that neither party has to prove marital fault in order to obtain a divorce. There are only two ways to get that divorce - prove a one-year separation or prove incurable insanity. Most North Carolina divorces are obtained after proving a one-year separation.

As part of that separation, the paperwork must be processed correctly through the judicial system. Once that has been proven, the divorce can be granted even though, in some cases, issues such as custody, child support and distribution of property have not been finalized. The divorce can also occur if one party does not want it. If the issue is incurable insanity, a three-year separation period is required.

Legal Separation

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On the date that a husband and wife move into separate residences with the intent of continuing to live apart, North Carolina law considers that a separation has occurred. Shortly thereafter, an attorney draws up separation agreement and property settlement papers, which determine how property will be divided, how child support and child custody will be arranged and how much alimony, if any, will be paid. And, although all those issues have been settled, the divorce can still only be obtained by a court after one year and one day of separation.

If couples can agree on issues related to the separation agreement and property settlement, it can save a great deal of money that would otherwise be spent on litigation. Placing the issues in the hands of a judge can be time consuming, emotionally draining and can leave a couple with an outcome that neither of them favors.

Unless a couple opts to use just one attorney, each party must have his/her attorney, especially if one party feels he/she is at a disadvantage in reaching a settlement with the spouse.

Child Custody

Child custody is likely the subject that carries the greatest emotional impact on all parties involved in a divorce. It takes a qualified attorney to help a couple work out these issues so that both rights and responsibilities are taken into consideration and the child is not damaged in the process.

There are several forms of child custody, which refers to the physical care and supervision of a child under the age of 18. Physical custody refers to the person with whom a child lives on a day-to-day basis. Legal custody refers to the person who is given the authority to make major decisions concerning the child such as education, discipline, religious upbringing and health care issues. In North Carolina, visitation may also be considered a type of custody.

Next is the issue of whether there will be sole custody or joint custody. With sole custody one spouse alone has legal and physical custody of the child. In a joint custody arrangement, legal and/or physical child custody is shared.

Most couples, although not all, are able to settle custody and visitation issues with a private agreement, not involving the court. This is the preferred course of action for all concerned since each parent wishes to maintain a consistent relationship with the child and have input into rearing that child. In some cases, the issue may be settled out of court by a consent order or parenting agreement that a judge later approves. Until that time each parent has equal rights to physical custody of the child.

If custody is contested, the court will determine what is in the best interest of the child. A judge will consider past and present conduct of each parent and whether evidence presented supports each spouse's claims. The judge will take into consideration such factors as:

Preference is shown neither to a mother or father, according to North Carolina law and the judge may rule in one of several ways.

The decisions made by spouses or by the courts will affect the family for many years so it is important to have an attorney who can develop and negotiate an effective settlement agreement or, if the couple uses mediation or litigation, to formalize agreements.

Until you and your spouse settle on a custody agreement, or until a court issues custody ruling, each parent is entitled to co-equal rights to the physical possession of their child. A written document formalizes custodial and visitation rights and prevents unplanned changes in custodial arrangements by either parent.

Custody decisions will affect your family life after divorce for a long time, so it is in yours and your child's best interests to understand your legal rights and obligations. An experienced Family Law attorney can assist in developing and negotiating comprehensive custody settlement agreements, providing references to mediation expertise, and formalizing agreements reached as a result of mediation or litigation.

Domestic Violence

Domestic violence is also known as partner abuse, spouse abuse or battering. Essentially it means that one person in a relationship has used force to inflict emotional or physical injury upon the other. It can occur between spouses and partners, parents and children, children and grandparents, and brothers and sisters. Each year, between 2 and 4 million women in the United States are victims of domestic violence and an estimated 2,000 of these battered women die of their injuries. Domestic violence, however can also be perpetrated upon men and children.

More women between the ages of 15 and 44 are victims of domestic violence than are victims of muggings, car accidents and rapes combined. Without help, abuse will continue and likely worsen. Many resources are available to help victims of domestic violence understand their options and be supported. No one deserves to be abused.

North Carolina has specific laws to protect victims of domestic violence. If your spouse is violent and out of control or your children are in danger, it's best to immediately call the police, if that is possible. After the immediate danger has passed, a county agency that deals with domestic violence should be called. Someone there can direct you to a shelter and provide advice and counseling, especially if you are tempted to return home before the issue is resolved.

Domestic violence can take many forms - hitting, kicking, being constantly questioned about where you go, how you spend your time, what you wear and who your friends are. It can also take the form of being accused of doing things you've never done, having to ask permission to go places or see friends. Or it can mean having to submit to sexual intercourse or engage in sexual acts against your will.

Sometimes the person being abused is afraid to leave so if the situation is intolerable it's important to have a plan so you can act quickly when the time is right. In an emergency situation, call 911 or your local law enforcement agency. If you aren't in immediate danger, you might want to call one of the following:

In order to obtain a protective court order against your abuser, you must go to the Clerk of Superior Court at any county courthouse and file a complaint alleging the specific facts of domestic violence and your relationship to the abuser. If the complaint appears valid, the court will issue an ex parte protective order, meaning that only one party was present. What often is done is that the court orders that you be given possession of your home, personal property, household possessions or vehicles and the abuser must stay away from your residence, place of employment and your children's schools.

Within 10 days of issuing this protective order, the court will conduct a return hearing when you will again testify to the specifics of domestic violence and your abuser can also testify in his or her own defense. Witnesses may be called to testify and if the court is convinced that acts of domestic violence took place, it will issue a permanent protective order. That order is effective for one year.

That protective order should be sent to your abuser and to your local police or county sheriff's department. Keep a copy handy in case your abuser is in violation and you need to call the police on short notice.

After the year is up, the protective order will end although the victim may apply for a renewal for another year.

Alienation of Affection

North Carolina is one of only eight states in the country in which Alienation of Affection applies. In the other 42 states the law was changed by legislation or by court ruling. In recent years, various bills to eliminate the current laws regarding alienation of affection have been introduced in the North Carolina legislature and defeated. Some legislators and lobby groups have pointed out that these laws are outdated because they are based on ancient property law. Others believe the statutes help preserve the family and put a value on a marriage and the damage inflicted by a third party.

The term Alienation of Affection refers to a legal action (also called a tort) based on willful and malicious interference with marriage relations by a third party.

Criminal Conversation

In a Criminal Conversation suit, the Plaintiff seeks damages for the act of sexual intercourse between the spouse and a third party. Each act of adultery can give rise to a separate claim for Criminal Conversation.

North Carolina juries have handed out big awards in Alienation of Affection and Criminal Conversation cases. In some instances awards have been as much as $2 million. More than 200 alienation actions are typically filed per year.

For a plaintiff spouse to recover for Alienation of Affection, certain conditions must be met:

In a Criminal Conversation suit, the Plaintiff has to prove only three things, namely that:

Regarding Alienation of Affection, the law is intended not to protect the exclusive right of sexual intercourse but rather the right of actual affection between spouses. Not only a third party but also in-laws and religious organizations have become defendants in Alienation of Affection suits.

Because of the intricacies of Alienation of Affection and potentially large settlements, it is important to hire an experienced attorney to represent you in any Alienation of Affection suit. If you are separated or are anticipating a separation from your spouse, your attorney can draft documents that will protect you from a future Alienation of Affection and/or Criminal Conversation action, in the event you desire to have a relationship following your separation with your spouse.

This document must be signed by your spouse, so it is important to find an attorney who can draft and negotiate an effective agreement for you. Sometimes this agreement is contained in a Separation Agreement, but it can also be included in other agreements during the period of separation if the parties need time to resolve other issues related to the marriage.

In North Carolina, an innocent spouse can sue for monetary damages based on allegations of emotional harm caused by a third party to the marital relationship. This suit is usually brought against the guilty spouse's lover; but may also be brought against someone like an in law or other relative who has advised the defecting spouse to leave the marriage. There is a three-year statute of limitation for bringing such a suit in either an Alienation of Affection or Criminal Conversation case.