North Carolina Divorce Attorneys Serving Asheville, Hendersonville & Surrounding Areas
In North Carolina, any married couple or separated party can petition a court for an absolute divorce, which is the legal means by which the State dissolves a marriage. While an absolute divorce ends the marriage, it doesn’t specifically address all of the issues typical to a divorce. This is because the entry of a judgment of absolute divorce is actually an action independent from all of the other material issues people think about when using the term "divorce."
Actions for custody of minor children, child support, alimony and equitable distribution are typically filed independently of an action for absolute divorce. In practice, these related actions are typically filed before an action for absolute divorce, because North Carolina requires the parties to be separated for at least one year before applying for an absolute divorce.
Criteria for Obtaining an Absolute Divorce
To obtain an absolute divorce, one or both parties must meet the following requirements:
- The parties must be legally married. Because there is no common-law marriage in North Carolina, the parties must be married in a ceremony recognized by a government. Marriages that are valid in other U.S. states and territories are acceptable, and often the court will recognize a marriage performed in a foreign country as well.
- At least one of the parties must have been a resident of North Carolina for at least six (6) months prior to applying for the divorce. This is a jurisdictional requirement that cannot be waived, even with the agreement of the parties – North Carolina Statute § 050-8. Jurisdiction is often confused with venue. Put simply, jurisdiction is the theory by which the State of North Carolina has the authority to hear your case, while venue deals with where in North Carolina your case should be filed and heard. For example, if you live in Asheville, the appropriate venue for your case is Buncombe County District Court. It does not matter if the opposing party resides in the same city or county as the other party. For example, if you live in Asheville and your spouse has moved to Hendersonville, you can file the action for divorce in either Buncombe County or Henderson County. North Carolina Statute § 50-3.
- If the other party is not a resident of the state, the Court must ensure it has jurisdiction over the out-of-state party. There are various ways to accomplish this under a theory called “long arm jurisdiction,” which is an issue that can be addressed by one of our experienced attorneys if applicable to your case..
- Again, the parties must have been separated for at least one year prior to the entry of a judgment of absolute divorce. “Separated” means the parties physically live apart, in separate residences (living in separate parts of the same house is generally not sufficient). While many parties separate and never have any significant contact after separation, there are many cases where determining the final date of separation can be more difficult. Brief periods of reconciliation, or even less well-defined periods of intimate contact between the parties, can make determining an exact date of separation difficult. If there is any question as to the parties’ exact date of separation, you should speak to one of our experienced attorneys for guidance on this issue.
While the entry of an absolute divorce dissolves the marriage, it does not address any other material issues between the parties, such as the division of property, custody of the children, support for minor children or the award of attorney’s fees or alimony. All of these matters can be handled during the process for several types of divorce, but they are not necessarily handled by the entry of an absolute divorce. In fact, if someone obtains an absolute divorce before addressing these other matters, the absolute divorce can prevent the parties from later seeking things such as alimony, equitable distribution or attorney’s fees.
Comprehensive Solutions for Your Absolute Divorce
If you’re seeking a judgment of absolute divorce, make sure you speak to one of Van Winkle’s experienced family law attorneys. While an absolute divorce can seem simple, the court system is fraught with nuanced case law, as well as complicated statutes, rules and even specific local customs and procedures specific to Asheville, Hendersonville, Waynesville and other areas of Western North Carolina.
Our divorce lawyers can help you secure an absolute divorce and, more importantly, assist you in pursuing alimony, equitable distribution, attorney’s fees, child custody, child support or any other applicable relief based on the facts and circumstances of your case. Don’t make the mistake of accidently waiving your right to something to which you might be entitled.
We have a wealth of experience in a wide variety of family law cases, as well as experience as former prosecutors, legal aid attorneys and long-time civil litigators. With the support of the largest and oldest law firm in Western North Carolina, Van Winkle is ready to help you get the best possible results in your case.
What Is The Difference Between Divorce And Annulment?
Divorce and annulment are the two legal avenues for ending a marriage.
Annulment cancels a marriage by declaring the union was not valid. Once a marriage is annulled, it is legally as though it never existed. Either spouse can initiate an annulment process.
Divorce is a procedure used to conclude a legitimate marriage. After a divorce, the spouses return to single status, but their now-ended marriage is still legally recognized as having been a valid union. Although one spouse can initiate a divorce, consent by both parties usually makes for a shorter and less complicated process.
Each state has its own laws regarding divorces and annulments. A North Carolina divorce attorney from The Van Winkle Law Firm can discuss all the requirements affecting your case.
Are Divorce And Marriage Dissolution The Same Thing?
The terms divorce and marriage dissolution are used interchangeably as they have the same meaning. A divorce technically effectuates the dissolution of a marriage by ending the legally binding union between spouses and restoring each of their eligibility for remarriage.
Do I Need A Divorce Lawyer?
Hiring a lawyer is not required during a divorce — occasionally, couples work out their differences and amicably part ways. However, divorce can be an emotional process, and even couples who are friendly with one another can encounter roadblocks over custody agreements, asset distribution, and other critical issues.
Whether the relationship between spouses is cordial or contentious, a divorce attorney can act as an impartial mediator who explains the law and looks out for the best interest of either or both parties.
What Are The Benefits Of Obtaining A Divorce Lawyer?
Divorce law is a specialized practice area of family law that involves both federal and state regulations. If you are apprehensive about hiring a lawyer, consider that an experienced, local attorney will be knowledgeable about the applicable divorce laws in North Carolina. He or she will be able to get you through the divorce with less emotional stress while also ensuring you receive the fair share you are entitled by law.
What Are The Grounds For Divorce In North Carolina?
Physical separation is the primary grounds for a divorce in North Carolina: the couple must live apart (not cohabitate) for a consecutive 12 months. Additionally, one spouse must also obtain a court-ordered decree of legal separation (divorce from bed and board).
Other grounds for divorce under North Carolina law include one party exhibiting harmful behavior toward the other party or the relationship itself through actions such as abusing drugs, being physically abusive, or committing adultery.
Do I Have To Go To Court When I Get A Divorce?
An amicable divorce can be handled outside of court through mediation, a process that typically results in a separation agreement that outlines each party’s post-divorce responsibilities. If the dissolution of the marriage is contentious, the matter of ending the marriage must be settled in a court trial. Following testimony from spouses and arguments by the divorce attorneys, the judge provides rules on the final terms of the divorce.
When Is The Best Time To Divorce?
Divorce proceedings require focus and commitment from the two parties. A divorce lawyer can take some of the weight off your shoulders by handling the procedural matters and dramatically reducing the likelihood of mistakes or surprises. But even with an attorney’s help, dissolving a marriage can be an emotional process. The best time to handle a divorce is thus when the two sides each are in a stable phase of work and family life. There could also be an issue, such as spousal abuse, infidelity, or one spouse wanting to remarry, that adds urgency to the need to dissolve a marriage.
What Do I Have To Prove In Order To Get Divorced?
The type of proof needed to end a marriage in North Carolina depends on the grounds for the divorce complaint.
Physical separation is a common reason for dissolving a marriage. The couple must be living apart for at least 12 months consecutively and then prove their lack of cohabitation by obtaining a court-ordered decree of legal separation. To proceed with a divorce, at least one spouse must also meet the state’s residency requirement of six months.
Other grounds for divorce fall under the category of fault divorce. Unlike a no-fault divorce, which is a mutually agreed-to separation, fault divorce is caused by one spouse who commits actions such as adultery or physical abuse. Evidence to support a petition for fault divorce includes direct proof, such as records or physical evidence from police, private investigators, or medical professionals, and circumstantial evidence, such as witness testimonies.
What If I Didn’t Get Married In North Carolina?
Even if you did not get married in North Carolina, you could still seek a divorce in the state as long as at least one spouse meets the residency requirements (six months).
What Happens In A Divorce?
There are four steps to get a divorce in North Carolina.
First, the married couple physically separates: one or both spouses move out of the residence so they are no longer cohabitants — the separated status is only recognized after one spouse obtains a fault-based legal action known as a “divorce from bed and board.” (If separation is not viable, North Carolina law also recognizes a spouse committing drug abuse, physical abuse, or adultery as grounds for legal separation.)
Second, one spouse files a divorce complaint with the Clerk of Court; in North Carolina divorce attorneys can also submit these notices for their clients. A sheriff or deputy in the county where the notice is filed then delivers by certified mail or in person a divorce complaint to the other spouse. After the couple has been separated for at least 12 months consecutive, either spouse can file for a legal divorce. (If the couple moves back in together, the time resets on the 12-month physical-separation requirement.)
Third, if there is not a mediation between the two parties, the divorce proceedings move to a court trial. A judge listens to the arguments from the attorneys, as well as testimony from the spouses, before rendering a final decision.
Fourth, if a separation agreement was reached during mediation, the arrangements outlined therein are made enforceable by a court. Terms of agreement may pertain to matters such as child custody, alimony, and distribution of assets. It is helpful to have an experienced lawyer draft a separation agreement because, if one party later disputes the agreement, North Carolina courts usually presume the terms are already fair.
What Happens To Our Property And Debt If We Get Divorced?
Property and debt are both factored in to a couple's net worth. When people divorce, the settlement agreement distributes their assets and debts. During the divorce proceedings, both spouses are entitled to equal access to the family’s financial records. That said, a divorce attorney is experienced in financial matters and works to ensure you receive a fair share of the assets and debts.
What’s The Difference Between Community And Non-Community Property?
Community property (also called marital property) is any property that is acquired by one or both spouses during marriage. These assets are subject to the equitable distribution law of North Carolina.
Non-community property (also called separate property) are assets procured by one spouse before marriage (or after a divorce), as well as certain gifts and inheritances received by a spouse from third parties during the marriage. Separate property is not subject to equitable distribution, and thus full ownership is retained by the spouse after a divorce.
Who Gets The House After A Divorce?
North Carolina law says both spouses have a right to the couple's marital property, including any family residences purchased during the marriage. During divorce, the couple will need to negotiate who gets ownership of the house. Should a couple fail to come to an agreement, a judge will rule on the matter. If retaining ownership of the family residence is a priority for you, a divorce lawyer can help handle this and other negotiations regarding asset distribution.
What Are The Residency Requirements?
The residency requirements for divorce in North Carolina state that at least one spouse must be a resident for at least six months prior to filing a complaint. To qualify as a resident, the person must live and be intent on remaining in the state.
What If I Don’t Want To Get Divorced?
It only takes one spouse to file a divorce complaint in North Carolina. If one party is intent on dissolving the marriage, the other party cannot prevent that course of action. Ultimately, the matter will be resolved either through mediation or in a court trial. Divorce proceedings can take longer to finalize when spouses are not in agreement, although each side having a lawyer can also streamline the process. Some couples, after speaking with divorce lawyers and learning what is involved in a trial, choose to reconcile or experiment with temporary separation.
How Much Does It Cost To Get A Divorce?
The cost of filing for an absolute divorce in North Carolina is $75. However, there is no way to figure out the total costs of the divorce because every couple’s proceedings involve different factors. Anticipated costs include the filing and serving the divorce petition, legal name change (if applicable), and hiring a divorce lawyer. A divorce attorney at The Van Winkle Law Firm can help you estimate the costs during a consultation.
How Long Does It Take To Get Divorced?
After a spouse meets the six-month residency requirement under North Carolina law, and the couple is eligible for a divorce, the proceedings can take been anywhere from one to several months or more. Factors affecting the length of a divorce proceeding include the value of the couple’s marital assets, how amicably the two parties are communicating, and whether the final resolution is going to be worked out in mediation or a court trial.
Divorce With Children FAQs
Do Children Understand Divorce At A Young Age?
Children of different ages have separate understandings of divorce.
Infants will sense the tension between parents but will not grasp the root of the conflict. Toddlers and preschoolers will comprehend that their parents are separating but may misunderstand the reasons behind the divorce and even believe it is their own fault.
Elementary- and middle-school-age children know the concept of divorce and may understand the parents’ reasons for dissolving their marriage, but the children may need additional support to overcome feelings of insecurity or low self-esteem.
By high school and beyond, children are old enough to rationalize that divorce may be in the best interest of their parents. However, a recent divorce may cause short-term feelings of frustration or lack of trust.
To prepare children for divorce, be honest with them and explain the situation, as well as offer them continued reassurance and support.
How Will Divorce Affect My Kids?
Parents tend to worry about how divorce will affect their children, but some of the effects are positive. After a divorce, tensions in the household that had existed between parents are gone, and kids often feel a sense of relief. Children in one-parent households can also learn to take on more responsibility. And while some kids respond to divorce by acting out at home or in school, these behaviors generally subside as the children age and more fully comprehend the situation.
Is Divorce Bad For Children?
Good and bad are relative terms when it comes to divorce. Although two-parent households can be healthy for children, that reality changes when spouses argue and create hostile or tense environments that affect the kids. If life at home settles down as the result of divorce, children may feel relief more than any other emotion. However, younger children will need support during a divorce, as well as reassurance that the cause for the separation is not the child but rather the parents who are working to improve the family’s situation.
Does My Child Need A Lawyer?
Your child does not need a lawyer during divorce unless you consent or a judge assigns your child an advocate attorney. However, you can benefit from having a divorce attorney who specializes in child custody issues. Either through negotiations or a trial, a child custody lawyer works on your behalf to ensure your kid(s) is under your parental care for as much (or as close to) the degree that you believe is in the best interest of the child(ren).
Who Pays For My Child’s Lawyer?
Except for court-appointed child advocate lawyers, you have financial responsibility for the legal representation you hire on behalf of your child.
Why Did The Court Appoint A Guardian For My Child?
The court can appoint a guardian for a child for several reasons. If you are the parent and did not provide written consent to appoint a guardian, the court may have done so after finding you either unavailable, meaning you are no longer able to be in the child’s life because of military service or incarceration, or unfit to provide care for the child due to mental illness, substance abuse, or neglectful or abusive behavior.
Why Would My Child Need A Lawyer?
The court may appoint a child advocate attorney in divorce cases involving neglect or abuse of a minor, contested child custody, and termination of parental rights.
Should I Ask For A Lawyer For My Child?
Juveniles are entitled to legal representation in matters concerning parental rights. You can request a child advocate lawyer under certain circumstances. However, experienced divorce attorneys can simultaneously represent the interests of parents and children.
What If I Ask The Court To Give My Child A Lawyer, But The Court Does Not Agree?
If the court denies your request for a child advocate attorney, you can hire a divorce lawyer with knowledge of child custody law in North Carolina.
Do I Have To Help The Lawyer?
Divorce can be a busy time for parents. While focused on personal legal matters, you might not also have time to take care of your child’s wants and needs. A child advocacy lawyer can fill in and look out for the best interest of your son or daughter in court. Though you are not obligated to assist your child's attorney, any help you do provide (such as by cooperating with information requests or heeding legal recommendations) can increase the chance of a favorable settlement (including on a child support or custody agreement) for you and your kid(s).
How Do I Ask For A Lawyer For My Child?
The judge in a divorce trial will listen to your request for an advocate attorney for your children. If the request is not granted by the court, you can then hire a divorce attorney with experience in child custody matters in North Carolina by contacting The Van Winkle Law Firm.
Contact us today to set up a consultation with one of our trusted attorneys.