North Carolina Uncontested Divorce

This information is an overview of the uncontested North Carolina divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in North Carolina.

In North Carolina, either the Plaintiff, the party who initiates the divorce, or the Defendant, the party who replies, must live in the state for six months prior to filing for divorce. Either spouse may petition the court for divorce after he or she has lived separate and apart for one year.

North Carolina is a No-Fault state. There is nothing for the other spouse to dispute except the separation.

The court may grant divorces from bed and board, which are legal separations, as per application of the injured party. Grounds for a legal separation are 1) abandonment, 2) cruel and barbarous treatment that endangers the life of the other spouse, 3) indignities that render the other spouse’s condition intolerable and life burdensome, 4) excessive use of alcohol or drugs, 5) adultery, 6) maliciously turning the other out the doors.

All uncontested divorces have five steps that include:

> filing court papers that ask for a divorce and the division of property and care of the children;
> notification of the defendant spouse that a divorce has been filed;
> scheduling a hearing;
> notification of the spouse of the hearing date;
> attending the hearing and having a judge sign a judgment granting the divorce.

These steps, however, course along one of three routes, and each route requires forms and follows procedures special to it.

The forms used for divorce in North Carolina are base on models provided by the North Carolina Administrative Office of the Courts. The forms should be typed or printed in black ink. The divorce paperwork normally is filed in the county court of residence.

The three divorce routes are 1) the standard divorce procedure, 2) the uncontested divorce procedure and 3) the contested divorce procedure.

Each of these routes require that the defendant be served a Summons and that the Petitioner file an Affidavit of Service with the court. The Summons gives the Defendant 30 days to respond to the Divorce Complaint. Service of process, as this is called, is either by the sheriff in the county of residence of the Defendant or by certified mail. The Affidavit of Service authenticates that the Defendant has been properly served.

The standard divorce is ideal when the spouses 1) have no minor children, 2) have no major assets, and 3) expect no alimony or maintenance from each other.

In the standard divorce route, the Petitioner files a Divorce Complaint (No Children). The complaint identifies the spouses, their addresses, date and place of marriage, states that they "have lived continuously separate and apart" for more than one year and that there are no children.

A Verification, which affirms the accuracy of the information in the Divorce Complaint, is attached to the back of the complaint.

At the divorce hearing, which is scheduled after the filing and service, the judge signs Judgment for Absolute Divorce, which formally ends the marriage, and the Plaintiff completes a Certificate of Absolute Divorce or Annulment, which records the divorce for the state.

A uncontested divorce can follow one of two routes. When the couple agree on all issues -- the terms and conditions of property division and distribution, child custody and support, alimony -- they can prepare a separation agreement, and sign it in the presence of a notary public. After that, only the Petitioner needs to attend the divorce hearing that is scheduled after the Respondent is properly served.

When couples agree about everything and decide on an uncontested divorce, the Defendant can sign an Acceptance of Service, which short-circuits the notification process and can speed up the divorce.

The second way an uncontested divorce happens is for the Respondent to default, that is, simply not respond to the petition.

In both renditions of a uncontested divorce, however, the action begins with the Divorce Complaint, the Verification and Civil Summons. Along the route, either at the time of filing the Complaint or before the final hearing, the Plaintiff files the Divorce Judgment, Certificate of Absolute Divorce or Annulment and Separation Agreement. The Separation Agreement is a form that can be customized to the situation of the divorcing spouses.

When minor children are involved, the Plaintiff must file an Affidavit As to the Status of Minor Child for each unemancipated child in the family. This form provides the court with information about the child, where he or she has lived, custody decisions, and his or her status in the divorce.

Even if the Defendant does not respond to the Complaint, he or she must be given a Notice of Hearing.

The trajectory of a contested divorce cannot be predetermined because often a contested divorce may become uncontested during negotiations. However, a contested divorce requires all the forms of an uncontested divorce. In addition, the court requires that both parties submit a Financial Affidavit, which is a summary of the income and expenses, assets and liabilities of each spouse as well as what they own and owe jointly.

If the Defendant will not cooperate in the filing of a Financial Affidavit, the Plaintiff must file a Subpoena, which is a form of discovery. Before a subpoena is sent, however, the Plaintiff must give the Defendant notice that he or she intends to subpoena this information. Sometimes this may induce an uncooperative spouse to provide information, but if it does not, a subpoena must be sent to each third party having pertinent information about the finances of the Defendant. This can be very time consuming. The subpoena gives the third party seven days to respond.

In addition, the Plaintiff may submit interrogatories, written questions which the Defendant answers under oath and pain of perjury.

The court clerk normally schedules divorce hearings.

In North Carolina, two agencies are involved in the processing of child and spousal support. These are the Central Depository, which processes child and spousal support, and the Child Support Enforcement Office, which is responsible for enforcing the payment of child support to parents receiving welfare and others who request its services.

When a spouse cannot or will not be found, the Plaintiff must make what is termed a "diligent search" to locate him or her. This search is a preliminary to a Service by Publication, in which the Plaintiff publishes the Summons in a newspaper.

This search entails checking sources that include: the telephone book and directory assistance in the area where the Plaintiff lives and in the last area where the Defendant is known to have lived; friends and relatives who might know where the Defendant is living; the post office where he or she last lived for information about forwarding addresses; tax and assessor records to determine if the Defendant owns property; Department of Motor Vehicles to see if the missing spouse has any automobile registrations. This search may include contacting the military if there is reason to believe the missing spouse may be in the service.

After a diligent search has been made, the Plaintiff may serve the Defendant with Notice of Service by Publication. In this routine, the Summons of the divorce action is published in a newspaper in the area where the missing spouse may be living. The notice must be published once a week for three successive weeks, after which the Plaintiff must file an Affidavit of Service by Publication. This affidavit certifies that the publication happened.

The Notice of Service by Publication gives the Defendant 40 days to respond to the action, after which the divorce can proceed, most often as an uncontested default.