Types of Divorce in North Carolina

divorce in nc

No-fault divorce

North Carolina is a “no-fault” divorce state.  Accordingly, the only requirement to receive a divorce in North Carolina is that you are a resident of North Carolina, and that you have been separated from your spouse for at least 12 months.  Neither party to the divorce is required to claim fault of their partner that leads to the breakdown of marriage.  However, a court may still take into account the behavior of the parties when dividing property and debts, evaluating custody, and considering whether one spouse should make support payments to the other.

Absolute Divorce

Once a married couple has been separated for at least a year, and one of the spouses has resided in North Carolina for at least six months, then either spouse is entitled to an “absolute divorce”, meaning that they are legally divorced.  This can be somewhat confusing, because people will often get divorced before other issues, such as child custody and support, property division, and spousal support have been disposed of.

Divorce from Bed & Board

A person who obtains a divorce from bed and board is not legally divorced.  This seems confusing – however, a divorce from bed and board is nothing more than a judicially authorized separation and can be granted in the following cases:

  • One spouse abandons the other;
  • One spouse throws the other spouse out of the house;
  • In situations where there has been domestic violence;
  • Where there is evidence of “indignities”;
  • There is excessive use of alcohol or drugs by one spouse; or,
  • Where one spouse has committed adultery

Contested vs. Uncontested Divorce

A contested divorce is one where the parties cannot agree on some aspect of the divorce.  Commonly contested issues include custody of the children, payment of spousal support, or how to divide assets and debts.  Where there are closely held businesses, or substantial real estate holdings, the valuations of the business or the property is often disputed.

An uncontested divorce is a divorce where the parties have agreed to all of potential issues and have entered into a Separation Agreement.  It is good practice for the parties to file this agreement with the court and have it incorporated into the final judgment of divorce, although this does not always happen.  Uncontested divorces are more common where the parties have little in the form of assets or property, no children, and spousal support is not an issue.

Collaborative divorce

Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues.  In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.  Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely.

Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process can later be used in further legal proceedings, as the collaborative process is not a confidential proceedings absent some binding agreement that says it is confidential. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party’s attorneys or a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all.  Divorce mediators may be attorneys who have experience in divorce cases or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters.  Divorce mediation can be significantly less costly, both financially and emotionally, than litigation.  The adherence rate to mediated agreements is much higher than that of adherence to court orders.

The type of divorce you have will dictate the overall cost of your divorce in terms of legal fees.

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