What is the legal process for getting divorced?

An absolute divorce, also known as a no-fault divorce, requires the parties to first live separately and apart for one continuous year. On the day after the one-year period ends, you may file a complaint for divorce. That complaint must be served on your spouse and your spouse will have a set period of time to respond to the complaint.

After your spouse responds to the complaint, or the time to respond expires, then you can apply to the Court for a Judgment of Absolute Divorce. If there are no issues of material fact for the judge to decide, then you would file a Motion for Summary Judgment. If you have an attorney, you do not need to appear in Court when the Motion for Summary Judgment is heard. If there are issues of fact, then the Court will have a hearing to determine whether the conditions for granting a Judgment of Absolute Divorce are satisfied. You have to appear in Court for this hearing and you will have to briefly testify about the basis for the divorce.

You and your spouse have to live separate and apart for one continuous year. You MUST live in different homes. You cannot live in separate rooms of the same house.

This period may end and you may have to restart the one year separation period if you and your spouse reconcile, that is you and your spouse voluntarily choose to resume marital relations or you move back in together. Isolated incidents do not necessarily interrupt that one year period. The Court instead looks at the totality of the circumstances to determine whether there was an intent by the parties to resume marital relations.

Do I need to be a resident of North Carolina to get a divorce here?

What is a separation agreement and do I need one?

A Separation Agreement sets forth the legal rights and obligations between the parties on how marital property is going to be divided, who will have custody of the children and when visitation will be scheduled, whether one party must pay the other party alimony or child support, and any other provisions that the parties agree to regarding the terms of the separation.

A Separation Agreement may contain all or any of these provisions. For instance, if the parties agree on custody and visitation but not on property division, then the Separation Agreement will only cover custody and visitation. The Separation Agreement only covers those items upon which the parties agree.

You do not need a Separation Agreement in order to get divorced. Having one just makes things go smoother when it comes time to have the Judgment of Absolute Divorce entered.

Can I change my last name to my maiden name?

Yes. You may file a petition for name change with your complaint (if you filed the divorce complaint) or your answer (if your spouse filed the divorce complaint). There is no additional fee for changing your last name as part of the divorce.

You can change your last name to your maiden name, to the last name of an ex-husband with whom you share a child with the same last name, or to the last name of a deceased husband.

What do I do next?