Divorce is the legal process that ends a marriage. In North Carolina, anyone filing for divorce must meet certain requirements. You or your spouse must have lived in North Carolina for at least 6 months before filing. Also, you must have been legally separated for at least 12 months (365 days) with the intent to end the marriage. NC only allows no-fault divorce: spouses do not need to prove wrongdoing (like adultery or abuse). They simply have to have lived in separate homes for a year, wanting the marriage to end.
Key points about filing for divorce:
Separation
Spouses must have lived in different homes for at least one year (with one spouse intending to end the marriage). You don’t need a written agreement to be “separated” — living apart physically and with the intent to divorce is enough.
Residency
At least one spouse must have been a North Carolina resident for six months before filing. You file in the district court of the county where either spouse lives.
No-Fault Requirement
North Carolina law does not consider fault (infidelity, abuse, etc.) when granting a divorce. As long as the separation requirements are met, either spouse can file, and the other cannot block the divorce.
Filing the Complaint
To start, the filing spouse prepares a “Complaint for Absolute Divorce” stating the facts (marriage date, separation date, etc.) and any requests (like property division or support). This complaint (along with a summons, cover sheet, and other forms) is filed with the court clerk. You must pay a court filing fee (currently about $225 in NC) and have the other spouse formally served.
Service of Process
The complainant must serve the divorce papers on the other spouse, usually via the sheriff or by certified mail. Proof of service (like a signed return receipt) is filed with the court. Without proper service, the court cannot proceed.
After filing and service, the court sets a hearing date (often 30 days later). If the case is uncontested (the other spouse does not dispute anything), the judge will review the paperwork and grant an absolute divorce at the hearing. The final divorce order legally ends the marriage and resolves any claims you requested (like dividing property or ordering support). Important: once the judge signs the final divorce decree, neither spouse can later ask for property division or spousal support unless those issues were raised in this divorce case.
Equitable Distribution of Property
North Carolina divides married couples’ assets and debts by equitable distribution (a “fair” division). In simple terms, this means the court splits marital property fairly between you.
- Marital vs. Separate Property: Marital property includes most things acquired during the marriage (homes, cars, retirement accounts, household items, debts, etc.). Separate property is what each spouse owned before marriage or received individually (like an inheritance or gift). Separate property usually stays with its original owner, except for any appreciation in value during the marriage. There is also “divisible” property acquired between separation and divorce, which may be split depending on circumstances.
- 50/50 Presumption: North Carolina law presumes an equal (50/50) split of marital property is fair. In practice, many divorces split assets roughly in half.
- Unequal Division: However, if one spouse asks for more and a 50/50 split would be unfair, the judge can order an unequal division. The court looks at factors like each person’s income, age, and health, the length of the marriage, and each spouse’s contributions (financial and non-financial) to the marriage. For example, if one spouse supported the other through school or homemaking, that contribution is considered. The judge also considers tax consequences, retirement considerations, and any debts. Marital debts are divided under the same rules. Note that general marital misconduct (like infidelity) is not a factor in property division, except for financial misconduct after separation.
Alimony (Spousal Support)
Alimony (sometimes called spousal support) is money one spouse pays to the other after divorce to maintain a similar standard of living. NC courts award alimony only when one spouse is economically dependent on the other and needs help. Either spouse can be the dependent spouse. There are no set formulas for who pays or how much; the judge decides based on each case. Important points about alimony in NC:
- Dependent vs. Supporting Spouse: A “dependent spouse” is one who needs financial support and is entitled to ask for alimony. The other spouse is the “supporting spouse” and would pay alimony if ordered.
- Judge’s Discretion: The court considers many factors: each spouse’s current income and earning capacity, health, age, and education; the length of the marriage; each party’s assets and contributions during marriage; and the needs of both. For example, a long marriage where one spouse didn’t work may lead to longer support. Unlike child support, NC has no formula or schedule – it’s up to the judge’s discretion.
- Duration: Alimony can be temporary or permanent. Typically, long marriages yield longer alimony awards. However, alimony ends if the recipient spouse remarries or moves in with a new romantic partner. It also ends if either spouse dies.
- Effect of Misconduct: North Carolina law does allow some “marital misconduct” to affect alimony. For instance, if the spouse who would receive alimony cheated on the supporting spouse before separation, they generally cannot receive alimony. Conversely, if the supporting spouse cheated, they can still be ordered to pay. Any other serious wrongdoing (abandonment, abuse, etc.) may also influence the judge’s decision.
- Tax Treatment (Update): As of 2019, alimony payments are not counted as income for the recipient under NC law.
Child Custody in North Carolina
When parents divorce (or were never married), they must decide who the child will live with and who makes major decisions. In NC these are called physical custody and legal custody, respectively. Either parent can seek custody. The court’s only concern is the child’s welfare; NC law does not favor mothers over fathers or vice versa.
Types of Custody
- Legal Custody is the right to make big decisions about the child’s life (education, healthcare, religion). For example, the legal custodian decides which school the child attends or medical treatments.
- Physical Custody is about where the child lives day-to-day and who provides daily care. The parent with physical custody is the child’s primary caregiver on a routine basis.
- Joint vs. Sole: Parents can have custody arrangements in various combinations. Joint legal custody means both parents must confer on major decisions, while sole legal custody gives one parent decision-making power alone. Joint physical custody (also called shared parenting time) means the child spends significant time living with each parent on a set schedule. Sole physical custody means the child resides primarily with one parent, with the other typically having visitation. NC courts encourage both parents to stay involved as much as is safe and practical.
How Courts Decide Custody
If parents cannot agree on custody, a judge will decide after a hearing. North Carolina uses the “best interests of the child” standard. This means the court looks at many factors and chooses what seems best for the child’s well-being. Important factors include:
- No Gender Bias: NC law forbids any automatic preference for one parent. Either parent can get custody of a child of any age.
- Stability & Caregiving: The judge examines each parent’s home environment, parenting skills, mental and physical health, and ability to meet the child’s needs. A stable, loving home is favored.
- Child’s Relationship: The strength of the child’s emotional bond with each parent matters. Judges consider who has been the primary caregiver and how well each parent has bonded with the child.
- Child’s Preferences: While there is no set age, NC courts may consider the wishes of an older, mature child. If a judge believes a child (typically a teen) can understand the situation, they may ask the child which parent they prefer to live with. However, the judge makes the final call based on all evidence; a child’s stated preference is just one factor.
- Safety and Welfare: Any evidence of abuse, neglect, substance issues, or domestic violence is taken very seriously. A parent who has endangered the child’s safety will be disadvantaged in a custody decision.
- Other Factors: Courts may also look at how willing each parent is to allow the child to have a relationship with the other parent, each parent’s work schedule, and the child’s school and community ties.
Visitation (Parenting Time)
In NC, even if one parent has primary physical custody, the other parent typically gets visitation rights (often called parenting time). Courts recognize that frequent contact with both parents is usually in the child’s best interest (unless there is danger). A typical schedule might give the noncustodial parent every other weekend, some weeknights, and shared holidays and summer time. Parents often submit a parenting plan outlining who has the child on which days; if parents disagree, the court will set a plan for them.
Court-Ordered Visits
The custody order (or a related document called a parenting plan) will spell out the exact visitation schedule. Both parents must follow it. For example, it may specify alternating weekends, specific weekday times, and details for holidays and vacations.
No Withholding Visits
It’s important to note that child support and visitation are separate issues. A parent cannot refuse the other parent their court-ordered visitation as a way of dealing with unpaid child support or other disputes. In fact, refusing visitation can hurt your case, and courts have held you can be held in contempt for violating custody orders.
Enforcement
If the other parent repeatedly denies your scheduled visits, you can ask the court to enforce the order. The court may hold the violator in contempt of court, which can result in fines or other penalties.
Modifying Custody Orders
Circumstances can change after a divorce. North Carolina law allows custody orders to be modified if there is a substantial change in circumstances affecting the child’s welfare since the last order. For example, a parent moving far away, a significant change in a parent’s job or health, or the child developing special needs could be grounds to revisit custody. To seek a change, the parent must file a “Motion to Modify Custody” in the court that issued the original order and prove the change in circumstances. The court will then hold another hearing to decide if and how custody should be adjusted.
Legal Standard
You must show that something significant has changed since the original custody decision and that the change is harming (or could harm) the child if the custody arrangement stays the same. Speculation about future events (like a possible job transfer) is generally not enough to justify a pre-planned change. In fact, NC appellate courts recently ruled that you cannot include “self-executing” future changes in a custody order. For example, one 2024 case (Madison v. Gonzalez-Madison) struck down a trial court’s attempt to automatically alter parenting time if the parents’ military relocations occurred. Instead, modifications must be requested through a new court hearing after events actually occur.
Temporary vs. Permanent Orders
Immediately after divorce, courts often enter temporary custody orders until a full permanent order is made. Once a final permanent order is entered, it stays in effect until successfully modified. If your order is temporary, either parent can ask for a quick review; if it’s permanent, a modification motion is needed.
Recent Updates & Trends (2024–2025)
North Carolina’s family law statutes have not radically changed recently, but courts and the legal community have emphasized a few trends:
Enforcement of Mediation
North Carolina requires almost all contested custody cases to go through a mandatory mediation program. This means parents attend an orientation class and at least one mediation session to try to agree on a custody and visitation plan. If mediation fails, the case proceeds to trial. Mediation remains a key step in 2024–2025.
Case Law on Modification
As noted above, recent appellate decisions remind us that custody orders must reflect current facts, not guesses. The Madison case (August 2024) confirmed that courts should not lock in future events for custody changes; any changes must be formally requested later. Similarly, earlier 2024 cases clarified when a temporary agreement becomes permanent (generally after a proper hearing). In short, changes in custody almost always require showing new facts, not just expecting things to change.
Digital Parenting and Records
While not a statutory change, practical trends affect custody cases. Many parents now use co-parenting apps, shared calendars, and text messaging to communicate. Courts increasingly see digital evidence (emails, texts, app records) as proof of each parent’s involvement or disputes. For example, Raleigh attorneys advise keeping written records of communications about the children (school, health, schedules), because such documentation can be powerful evidence in court. Always write emails or texts carefully, knowing they could be shown to a judge.
National Trends Reflected Locally
Like the rest of the U.S., North Carolina’s divorce rate has been gradually declining. The average age at divorce is rising, and many families seek mediation or collaborative divorce methods. During the COVID-19 pandemic, courts began allowing some remote hearings by video – a trend that may continue as courts modernize. These shifts are not law changes, but they influence how family cases proceed.
North Carolina also implemented a Parents’ Bill of Rights in 2023, but that primarily deals with education and healthcare rights in schools, not divorce or custody per se.
Key Terms Explained
- Absolute Divorce: The final court order that legally ends a marriage. Once granted, both parties are single again and any divorce terms in that order take effect.
- No-Fault Divorce: A divorce where no one has to prove the other did something wrong. In NC, only the one-year separation requirement is needed.
- Equitable Distribution: Fair division of marital property by the court. NC starts with a 50/50 split presumption, then may adjust for fairness.
- Dependent/Supporting Spouse: In alimony law, the dependent spouse needs support and the supporting spouse pays it.
- Legal vs. Physical Custody: Legal custody is decision-making power; physical custody is day-to-day care (where the child lives).
- Visitation (Parenting Time): Scheduled time the noncustodial parent spends with the child. Courts generally allow both parents frequent contact unless it’s unsafe for the child.
If you are facing divorce or custody issues in Raleigh, it’s wise to consult an experienced North Carolina family law attorney. This guide covers the basics, but every family’s situation is unique. A lawyer can help protect your rights under NC law and guide you through the process.