The term divorce refers to the process of obtaining a judgment of absolute divorce which legally dissolves and terminates the marriage. A claim for divorce is separate from, and does not include, claims for child custody, child support, post-separation support, alimony, and equitable distribution of property and debts. (See previous posts for information on such claims.)
In North Carolina it is not necessary for support and property claims to be resolved before a divorce is granted. Claims for post-separation support, alimony, and equitable distribution of property, however, must be filed before the divorce is granted, otherwise said claims are lost.
In North Carolina there is customarily one ground for divorce; that is, the separation of the parties for more than one year. You cannot file a complaint for absolute divorce until a year and a day following the date of separation. One of the parties must be a resident of North Carolina continuously for the six months prior to the filing of the complaint.
Presently, the procedure for obtaining an uncontested divorce for someone is:
- Sign the complaint and have said signature notarized. This must be at least one year and a day following the date of separation.
- The complaint is filed with the Clerk of Court, and the Clerk issues a civil summons.
- The spouse is served with a copy of the complaint and civil summons. This can be accomplished by service by sheriff or by certified mail. If the spouse’s whereabouts are unknown, there is a special procedure for service by publication. Service by publication does include additional costs which can be explained by your attorney.
- At least thirty-one (31) days after service has been accomplished we file a motion for summary judgment or a motion for a default judgment. These motions allow the divorce to be handled by a judge or the clerk without a trial. Copies of the motion, together with a notice setting the case on the calendar for a particular week are served on the opposing party or his or her counsel by regular mail.
- During the week the case is set for hearing, the judge examines the file and, if the paperwork is in order, will grant a judgment of absolute divorce.
Sometimes there are unforeseen problems. For example, the court file may be misplaced. The judge may be sick, or other circumstances may arise which prevent the judgment from being entered when scheduled. It is essential you not make any plans predicated upon entry of the divorce until after you have the judgment in hand. For example, committing to a marriage ceremony a few days after you believe the judgment of divorce will be entered will cause serious problems if the judgment is not signed and filed when it is scheduled to be completed.