What is an Uncontested Divorce in North Carolina? Simply put, this is where both parties agree to either dissolve their marriage or at the very least have no lawful grounds to dispute the dissolution of their marriage. Although it can be a simple process, if you do not follow the rules, both State and Local, your complaint could be dismissed. North Carolina General Statute 50-6 is fairly clear and states, in part, as follows:
Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in North Carolina for at least six months before they file their complaint for uncontested divorce.
Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.
Under most circumstances, the parties must live separate and apart for one (1) year before either party can file a lawsuit for uncontested divorce. If you file your lawsuit any sooner than one (1) year, your complaint will be dismissed and you will be forced to re-file your complaint. Our office always recommends not to file your complaint for simple uncontested divorce any sooner than one (1) year and (1) day after your initial date of separation. Your complaint must also be verified by you and this verification page must be attached. If your complaint is not verified, or was verified by you prior to the one year separation rule, then your complaint will likely be dismissed, forcing you to start over.
Once you have filed your complaint for divorce, it must be properly served upon the other party; regular U.S. Mail is not sufficient. You must serve the other party by certified mail (green card), sheriff service or in any other manner set out in Rule 4 of the North Carolina Rules of Civil Procedure. Once your complaint is properly served, the other party shall have 30 days to file an answer to your complaint, assuming they don’t waive their right to answer. If the party’s answer admits that all allegations in your complaint are true, especially the date of separation, then your divorce will likely be granted. Once the time to file an answer has run, you will then file a Motion for Summary Judgement and a Notice of Hearing for that motion, along with a copy of your divorce decree. This motion informs the court that there is no objection to your complaint for divorce and seeks the court to grant your motion to become divorced.
However, your overall lawsuit, regardless of the other party’s answer, could be dismissed if you do not follow State and local procedural rules that apply after service of the complaint. As long as you properly file all other required documents with the Court, such as an affidavit of service, a motion of summary judgment, notice of hearing and a possibly a Military Service Affidavit, then your complaint/motion for divorce should be granted.
Although a Complaint for Uncontested Absolute Divorce is fairly straight forward, it is advisable to speak with an attorney in the county in which you reside to make sure that it is done correctly, otherwise, you may have to start over.
To that point, we cannot stress enough the importance of following your county’s local rules for filing and facilitating a divorce. What might be sufficient in Mecklenburg County may not be sufficient in Wake County. Such as Mecklenburg County requires the Military Service Affidavit to be filed with the complaint for Divorce or with the Motion for Summary Judgment. The purpose of this affidavit is to protect men and women serving in the U.S. military from having a court order entered against them without getting notice of the lawsuit and a chance to defend the case. This may not be required in your county.
Counties also may vary on costs and time frame for your divorce to be completed. In Mecklenburg County, the filing fee to file a Complaint for Uncontested Divorce is $225.00, plus service fees, which could be an additional $30 if you request the Sheriff’s Department to serve your spouse with the complaint. The filing fee for your Motion for Summary Judgment and Notice of Hearing is an additional $20.00. If filed in Mecklenburg County, assuming you did everything correctly, once you have served your spouse with the complaint, it typically takes 45-60 days for your divorce decree/order to be entered by the court. You should also check with your county’s clerk’s office to determine whether you are required to attend the hearing(s); Mecklenburg County does not require your attendance.
WARNING: Most people are under the impression that getting “Divorced” resolves all matters or that all other matters relating to their marriage will be handled at that divorce hearing. This is 100% incorrect. Aside from Child Custody and Child Support, you must determine, beforehand, whether you are eligible to receive Equitable Distribution, Alimony or Post Separation Support. In order to protect these rights, you must do one of two things: (1) before the entry of your divorce decree/order, you filed a lawsuit seeking Equitable Distribution, Alimony and/or Post Separation Support, or (2) before the entry of your divorce decree/order, you executed a valid separation agreement resolving Equitable Distribution, Alimony and/or Post Separation Support. If you do not execute a separation agreement resolving Equitable Distribution, Alimony or Post Separation Support or you did not file a lawsuit seeking these rights before you become divorced, you will have waived these rights forever. This could be devastating to your future.
Although it is advisable to speak with an attorney before you file your complaint for simple uncontested divorce, it is equally if not more advisable to speak with an attorney to determine whether you are eligible for Equitable Distribution, Alimony or Post Separation Support and whether you should seek to protect these rights. If you have questions, please feel free to contact us at 704-937-2726 or email us to schedule a consultation with one of our Charlotte Family Law Attorneys.