Nobody looks forward to hiring a divorce lawyer, but you need to protect your rights. When you get married, the last thing that you want to think about is getting divorced. But for many, getting divorced is the best option for both parties. That being said, divorce is a complex legal process, as well as an expensive one. During the divorce process, it is very important that you understand divorce law, common issues in divorce, and your rights.
Grounds for Divorce in North Carolina
The state of North Carolina allows a person to seek a no-fault divorce. A no fault divorce is simply based on the idea that you and your spouse no longer want to be married. In order to file for a no fault divorce, you and your spouse must be separated for a minimum of one year’s time. However, if you resume living together as a married couple at any point during the year, the clock may need to be reset in order for a no fault divorce to be granted.
Absolute Divorce vs. Divorce from Bed and Board
In an absolute divorce the marital contract existing between the two parties is dissolved. Again, you do not have to prove fault, you just must live separately for one whole year.
A divorce from bed and board, however, does not dissolve the marital contract that existed between the two parties; instead, it grants a legal separation, but neither party is allowed to remarry. A divorce from bed and board is a fault-based legal action, and alleges that one spouse in the marriage committed an act of marital fault. Examples of actions that may warrant a divorce from bed and board include abandonment, malice, cruel treatment, adultery, or excessive use of alcohol or drugs. Spouses can later obtain an absolute divorce if they desire to do so. A divorce from bed and board is not an actual divorce.
How to File for Divorce in North Carolina
If your marriage satisfied the grounds for divorce, then you can begin the process of filing for a divorce. In order to file for divorce, it is important that you also meet the residency requirements; both you and your spouse must be residing in North Carolina for a minimum of six months prior to filing. Our attorneys are well versed in the filing requirements for divorce in North Carolina.
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Serving a Spouse with Divorce Papers in North Carolina
In order to serve your spouse with divorce papers, you will need to pay the county sheriff’s department to do so. If your spouse cannot be found, as is sometimes the case if abandonment has occurred, you may serve your spouse through publication. Service by publication is only allowed in cases where you have made a diligent effort to locate your spouse, but cannot find them. If this is the case, you can publish your divorce summons in a local paper.
Once your spouse has been served, you must wait 30 days before moving forward with your case. The 30-day period is designed to give your spouse time to respond. This time period is different in cases involving service by publication.
According to some statistics, 41 percent of marriages have at least one spouse who has admitted to committing adultery. While most states do not allow for a person who is a victim of infidelity to take any action against the spouse or the third-party adulterer, other than filing for a divorce, cheating can have expensive consequences in North Carolina. In fact, in North Carolina, you are allowed to sue the person with whom your spouse cheated on you with or otherwise interfered with your marriage; this is known as a lawsuit for alienation of affection. In order to file this type of civil action, you must prove that your marriage was happy and intact prior to the actions of the party against whom you are filing your lawsuit. Further, according to North Carolina General Statute 52.13, you cannot file a lawsuit if the sexual act arose out of you and your spouse’s decision or agreement to live separately.
Components of an Alienation of Affection Claim
In order to file your civil suit against the adulterous third party and seek damages, you must prove three things:
- That you and your spouse had a happy marriage;
- That the love between you and your spouse was alienated and destroyed; and
- That the alienation and destruction would not have occurred but for the actions of the person against whom you are filing the lawsuit.
It is important to note that while it is most common to file an alienation of affection claim against someone that your spouse had extramarital sexual relations with, other persons who interfere with your marriage may also be named in a claim. For example, if your spouse’s sibling alienated and destroyed your love with malicious intent, you can file a claim against this person.
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Damages Available in an Alienation of Affection Suit
An alienation of affection claim is a civil lawsuit that seeks to recover monetary damages from the party who acted wrongfully. Types of compensation that are available in an alienation of affection suit include:
- Loss of consortium;
- Loss of spouse’s income; and
- Loss of support.
In some cases, it may also be possible to win punitive damages, or damages that are awarded to punish the defendant.
Statute of Limitations for Alienation of Affection Lawsuits
You do not have unlimited amounts of time to file your alienation of affection lawsuit; rather, you must do so within three years’ time from the date that the alleged offense occurred. If you wait longer than three years, you will be barred from recovering civil damages.
Should I File an Alienation of Affection Suit?
You cannot file an alienation of affection suit against someone simply because your marriage has ended. But, if you believe that the sanctity of your marriage would have been retained but for the wrongful or malicious acts of another person, you may consider filing an alienation of affection lawsuit against this person. It is within your best interest to do so with legal representation. Filing an alienation of affection suit may allow you to recover monetary damages for your losses.
Above, alienation of affection was reviewed. In brief, alienation of affection is a civil lawsuit against a party who interferes with the health of a marriage, resulting in its demise. Similarly, criminal conversation is a tort arising from adultery that is filed directly against an adulterous third party; the tort seeks to recover civil damages from the adulterous party. To bring forth a criminal conversation action, you must prove that:
- You and your spouse were married; and
- At the time of marriage, your spouse had sexual intercourse with someone other than yourself.
Defenses to a Criminal Conversation Claim
There is only one good defense to a criminal conversation claim that a person against whom the claim is being filed can make: that the plaintiff and their spouse (with whom the third party had sexual relations) were separated at the time the affair occurred, or that the non-adulterous spouse consented to the sexual relations. A defendant cannot claim that the adulterous spouse was unhappy in the marriage, or that they were wrongfully seduced.
Damages Available in a Criminal Conversation Claim
If you are able to prove that your spouse had an extramarital affair, then you may be able to seek damages from the person with whom your spouse cheated on you. Damages may be sought for emotional anguish, loss of support and services, and more. In some cases, punitive damages may also be available.
Statute of Limitations in Criminal Conversation Cases
The time limit for filing a criminal conversation case in North Carolina is three years from the date that the alleged sexual intercourse occurred. If you do not file your case within the three-year time limit, then you may be permanently barred from filing a suit at all.
The Benefits of a Criminal Conversation Case
A criminal conversation case can result in a large compensatory award in North Carolina. However, sometimes, just the threat of a civil action against your spouse’s lover can give you leverage in negotiations during your divorce. In order to avoid the lawsuit, your spouse may be more flexible on other issues, such as the division of property. This is because court documents – like those filed during a criminal conversation lawsuit – are 100 percent public. To save face, your spouse may wiggle on important issues, giving you the upper hand.
If you suspect that your spouse committed adultery – or are sure of it – and are seeking a divorce, it is within your best interest to hire an attorney. Your attorney can advise you regarding issues like alienation of affection and criminal conversation, and how these lawsuits can affect other issues in divorce, perhaps in your favor.
Alimony/Post Separation Support
Alimony, often called spousal support, is one of the most common issues in a divorce or separation in North Carolina. For those spouses who are financially dependent upon the other, an alimony award can be essential for maintaining quality of life.
What Is Alimony?
Alimony is a monetary payment, which is typically made on a monthly basis (or lump sum payment). According to North Carolina General Statute 50-16.3A, “The court shall award alimony to a dependent spouse upon finding….that an award of alimony is equitable after considering all relevant factors.”
What Factors Affect an Alimony Award?
According to the same statute listed above, factors that may affect an alimony award include:
- Marital misconduct of either spouse;
- Earning and capacities of both spouses;
- The ages and physical and mental conditions of both spouses;
- Sources of income;
- How long the marriage has lasted;
- Contribution from each spouse to the other in terms of education and training;
- Earning power and financial obligations of each spouse;
- Standard of living established during the marriage;
- Education needs of the dependent spouse;
- Assets and liabilities;
- Property purchased by either spouse;
- Contributions as a homemaker;
- Tax consequences of an alimony award; and
- Any other factor that the court deems to be relevant.
In regards to the first factor – marital misconduct – North Carolina law specifically outlines that if the supporting spouse is the one who engages in marital misconduct, such as an extramarital affair, the supporting spouse will still be required to pay alimony. However, if the dependent spouse commits the affair, they may be barred from an alimony award unless special circumstances dictate otherwise. This is only the case if the other party did not condone the sexual behavior.
Post Separation Support in North Carolina
A temporary alimony award may be granted by the court in the interim of legal proceedings. For example, a person who has filed for divorce, but has not yet been granted it, may qualify for post separation support. Also, a spouse who has left their partner due to domestic abuse may qualify for a temporary alimony award.
A legal separation is not a divorce in North Carolina, but may be an effective way for couples to spend time away from one another. Often a precursor for divorce, a couple who has a legal separation can still seek resolution to common issues, such as property division, without a divorce being finalized.
What Is a Legal Separation?
Legal separation occurs when a couple decides to no longer live together, with the intent to remain separated. Because a couple must live separately for one year before a divorce will be granted in North Carolina, legal separation is often the first step.
Obtaining a Separation Agreement
Rather that just moving out and calling it quits, many couples seek a Separation and Property Settlement agreement. A separation agreement outlines common issues during separation, such as whether or not alimony will be paid, how property will be divided, with whom children will live, how much child custody will be paid, etc.
However, remember that even if you have these items, you do NOT have an absolute divorce until the court grants one. If you do not have an absolute divorce, you cannot legally remarry.
Benefits of a Legal Separation
One of the biggest benefits of a legal separation is that it is a mandatory prerequisite to divorce in North Carolina; you cannot file for divorce unless you have lived separately from your spouse for one year or more. A legal separation also has other benefits. For example, those who are opposed to divorce for religious reasons do not have to seek a divorce in order to live separately from their spouse. Maintaining healthcare benefits on a spouse’s record is another reason to choose a legal separation over a divorce. Of course, if you and your spouse decide to rekindle your romance, a legal separation is much easier to undo than is a divorce.
While there are benefits to a legal separation, keep in mind that legal separation can be just as complex, legally speaking, as can divorce. It can also be just as emotional and hard on any children you may have.
Legal separations are often a great stepping stone in the future of your marriage; the separation may bring to light the fact that you and your spouse truly want a divorce, or it may bring you closer together.
Family Law Attorneys Serving You
There are many issues that are hard to understand when getting a divorce, facing domestic abuse, trying to establish paternity and get a child support order, and more. At The Law Offices of J. Scott Smith, PLLC, our experienced North Carolina family law attorneys are ready to serve you. Contact us today for consultation using our online form.