Filing First For Divorce
Generally, there are no benefits to filing first in a divorce case. North Carolina is a no-fault state, and this means that the only requirement in order to get divorced in North Carolina is to be living separate and apart for one year, with the intent to stay apart. As long as you separate, intend to stay apart and do not resume the marital relationship, you can get divorced. After the year has passed, either person can get the divorce and does not need to provide a reason.
Some people who are unfamiliar with the law think, “I am not going to sign those papers, and I’m not going to give her a divorce.” Those kinds of ideas are born from Hollywood movies and hold no basis in reality or the law. When it comes to North Carolina, there is no need to sign anything in the first place. As long as someone has filed for the divorce (and met the one-year requirement), the divorce will be granted.
That said, there are some situations where filing first does make a difference.
For example, take a situation where you are alleging there is some kind of abuse in the relationship, particularly involving domestic violence (and especially if it involves children). North Carolina has domestic violence protective orders. Colloquially, they’re called 50Bs, because chapter 50B in the North Carolina Statutes is where the law on protective orders is laid out. So, if a child or domestic partner is in danger of domestic abuse, they appear in front of a judge ex parte (ex parte means that the opposing party is not present). The person then lays out the reasons that they believe a judge needs to make the opposing party stay away from them, or them and their children. If the judge agrees, a protective order is entered – but it doesn’t end there. The other party has to be served, and once served, they’re now aware that they can have no contact with the domestic partner or the children (if the case so merits). Even if they live together, in many cases, the police department will escort the other party to their house to get their personal belongings and give them the court date.
Typically, the ex parte protective order is, if granted, only temporary – usually around 10 days. Prior to the expiration of that order, a judge will review all the facts in a hearing involving both parties. The parties have a short window of time to get a lawyer or to choose to represent themselves. If, after this hearing, the judge determines there is a domestic violence issue, then a one-year protective order will be entered, which can be renewed each following year, if necessary.
How Long Does A Divorce Typically Take To Be Finalized In North Carolina?
In North Carolina, after the one-year separation period has ended, a divorce can be granted very quickly – if both parties are in agreement, as little as a few days. On average, though, it’s somewhere around 45 days for a “simple divorce” that does not involve any dispute over children, property or income.
On the other hand, the parties may have many issues to resolve. Some of those issues can be alimony, equitable distribution (how the assets are divided between the divorcing parties), child custody and child support. Most of these are, at least in simplistic terms, rather self-explanatory. Alimony is the exception. It’s basically a payment made from one of the two divorcing spouses to the other.
In North Carolina, we have two types of spouses: the dependent spouse and the supporting spouse. The supporting spouse makes the most money, and supports the other spouse and themselves within the marriage. The dependent spouse, on the other hand, relies upon the supporting spouse for their livelihood. The dependent spouse can, with the help of a competent attorney, turn to the courts during and after a separation, to try and have the supporting spouse continue to provide for the dependent spouse. This process occurs through the court issuing an order that the supporting spouse must pay money to the dependent spouse, so as to keep that dependent spouse’s lifestyle at the same level it was during the course of the marriage. If you are the dependent spouse, your attorney gathers information and performs calculations with that information in order to determine how much money the dependent spouse needs to try to live the accustomed lifestyle they were living, before the divorce is finalized. The attorney involved is, in essence, trying to calculate a dollar amount that would support that dependent spouse. As a supporting spouse, that is how much would have to be paid to the dependent spouse in alimony every month. Of course, this process isn’t usually very quick. Alimony falls under the equitable distribution rubric, and it usually takes time for equitable distribution to make its way through the court system.
So, what’s a dependent spouse to do when Alimony is slow in process? Well, there’s another claim, available as part of the divorce and separation between the parties, which bridges the gap between separation and the eventual award of alimony: post-separation support.
Post-separation support is designed to provide a bridge over that gap. Think of it as a kind of “temporary alimony” before the actual alimony is calculated. Alimony is executed at the time of the equitable distribution, but many times, it takes a while for the equitable distribution to run its full course. Therefore, during that period, that dependent spouse needs money to live on, especially if the divorcing spouses are living in separate locations. Post-separation support is designed to begin quickly, and be a temporary fixture on alimony payments, until alimony is actually determined.
Once alimony is determined, then that post-separation support goes away, and the alimony takes over. Bear in mind, if you have committed adultery against your spouse, and you are the dependent spouse, it is an absolute bar to alimony in North Carolina. Unless both spouses cheat, in which case the courts can do what they want – but if just the dependent spouse cheats, the court would normally bar alimony.
For more information on filing first for divorce in North Carolina, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling us today.