Divorce

Before You File

  • Have you been separated for a year and a day?
  • Have you done a Separation Agreement and Property Settlement?
  • Have you discussed and decided on equitable distribution and alimony?
  • Have you discussed and decided on child support and child custody?

Important Information

The statute that controls this is Chapter 50 of the North Carolina General Statutes

You must have been separated for a year and a day before you file if you are filing a standard, amicable divorce. You cannot file earlier, even if you intend not to complete the filing until after that timeline has passed. 

Once your divorce is finalized, you lose all claims to equitable distribution and alimony. These claims must AT LEAST be filed prior to the divorce being finalized if you intend to make these claims. If they are only filed and have not reached their finalization, you must keep the case active or you risk losing those claims. 

Child support and child custody can be brought at any time until the child turns 18 (or three years after for back child support) EVEN IF you have a Separation Agreement or other contract that has established these items.

It is better to NOT incorporate your Separation Agreement in the court filing. Incorporation gives you the opportunity to pursue contempt if your ex-spouse fails to meet their requirements of your Separation Agreement, but you have this avenue with specific performance or breach of contract through Small Claims.  

Filing Checklist

  • Filing fee
  • Complaint 
  • Verification
  • Civil Summons
  • Cover Sheet (Domestic)
  • SCRA Affidavit

Filing Documents

COMPLAINT

The Complaint is a document you draft. You can use the sample format for any filing that I’ve created for general use HERE

Your complaint should contain specific items, including: that the Plaintiff or Defendant has been a resident of North Carolina for at least six months, that the parties have been separated for a year with the intention to remain separate, and the names and ages of the minor children of the marriage or that no minor children were born of the marriage. [§50-8] I also include whether the Plaintiff has filed for equitable distribution and alimony and whether the Plaintiff intends to resume a maiden name.

VERIFICATION

The Verification is a document that goes with your filing where you sign in front of a notary to verify that you everything in your filing is correct to your knowledge. Not all filings require a verification, but it is required for divorce complaints. [§50-8] You can usually get this document notarized at any notary. Most banks offer notary services only for their customers for free, UPS offers notary services for $5-10 per signature, and I offer notary services. 

CIVIL SUMMONS

The Civil Summons is a document that tells the Defendant they are being summoned to Court for a filing. This is the official notice. The Defendant’s time to answer (30 days) starts when they are served. If a Defendant is not served within a certain time period, the Civil Summons needs to be issued again as an Alias and Pluries Civil Summons. If you file a new Alias and Pluries before the original or previous expires, your filing date for the entire case is considered to start with the new Alias and Pluries you file rather than your original filing date.

COVER SHEET

(DOMESTIC)

The Cover Sheet covers the basics of the case and the documents you are filing. This is where you include that you are filing a complaint and what items are included in your complaint. You can include multiple topics in your complaint like child custody and child support, divorce and alimony, etc. I often recommend that divorce be it’s own separate filing, so that you don’t have to otherwise bifurcate or separate the case to have the divorce granted even if other items in the complaint are continuing. 

SCRA AFFIDAVIT

The SCRA is the Servicemembers Civil Relief Act. This act protects servicemembers in active duty from certain civil and financial cases or obligations. This affidavit states the whether the Defendant is a servicemember. 

Answering a Complaint

When you are the Defendant in the divorce, you can file your answer to the complaint. You have 30 days to file your answer from when you are served. If you do not answer the complaint within 30 days of service, you risk not losing claims and defenses in your case. 

In amicable cases, it can be beneficial and expeditious to file your answer. You can use your answer to affirm or deny claims in the complaint as well as waive notices. 

When answering, number your responses to match the complaint. 
Example:

Complaint 
1. Plaintiff is a citizen and resident of X County, North Carolina and has been for over six months.
2. The Parties were married January 1, 2020. 

Answer
1. Admitted.
2. Denied, the Parties were married January 2, 2020. 

Language you can consider including in your answer:
See the sample language in the left column and what the language means in the right column.

I, YOUR NAME, the Defendant, willingly and voluntarily accept service of the Complaint and Summons in the above-captioned case and submit to the jurisdiction of the North Carolina General Court of Justice for all purposes in the above-captioned case at the time of filing.

This language means that you accept the paperwork and service, even if the Plaintiff has had trouble properly serving you under the North Carolina General Statutes. 

This language also means you agree to this court’s jurisdiction for this case file. This is a defense that you are voluntarily waiving with this language.

I, YOUR NAME, the Defendant, hereby willingly waive any and all responsive pleadings.

This language means that in any circumstance where you would have the opportunity to respond to a pleading, you waive those pleadings. This would be like an answer. Some people use this language in their acceptance of service rather than filing an answer. This can speed up the timeline, since you have a set amount of days to respond. If you waive your response, that set amount of time doesn’t have to pass for the next step.

I, YOUR NAME, the Defendant, hereby waive any and all notice requirements.

This language means that you waive any notice of hearing, notice of judicial assignment, notice of default, and any other notice requirements within your case. This can be helpful in speeding up the process to obtain your divorce, because the Plaintiff party will not have to wait to give you a notice of hearing to proceed with the case. This does mean that your case may have hearings without you knowing when they will happen. 

I, YOUR NAME, the Defendant, hereby request an absolute divorce.

This language means that you are also requesting an absolute divorce. This can be done with an acceptance of service that does not include other items you would find in an answer, like your claims for relief. It can also help to show the Clerk or Judge that you agree with what is happening in your divorce case.