North Carolina is a “no-fault” divorce state, which means that either spouse can file for a divorce. As long as you live separately for one year, you or your spouse can file for an absolute divorce. Whether you wanted the divorce or not, after your year of separation, you may find yourself facing the final divorce hearing. If you’ve never been in a courtroom, awaiting the hearing can bring anxiety about what will happen. So check out our essential divorce hearing guide and worry no more.
Marriage and Divorce
64,832 marriages and 32,862 divorces took place in North Carolina in 2019. With this many couples going through a divorce in NC, you are not alone. Attorneys who specialize in divorce can walk you through each issue you face with authority about the future of your case.
By the time you or your spouse file for divorce and await the hearing, you have been through a year of separation. Usually, during this year, you work out all of the issues related to child support, child custody, separation of property, and more.
However, your spouse is not required to agree to the divorce or do any paperwork related to the divorce. The court does not force them to come to the divorce hearing, sign paperwork, or file anything themselves. When a spouse does not do anything about an impending divorce, the judge will settle all marital property and declare a default divorce regardless of your spouse.
During the year of separation, you and your spouse have a chance to settle all of your marital issues. Often spouses disagree about property division, alimony, child custody, visitation, and support. While it is crucial to work out the property division before the divorce hearing, you can petition the court to look at child custody, visitation, and support at any time.
However, going into a divorce hearing without negotiating your position beforehand can be reckless. If you and your ex agree about the issues, there is no need to think about arguments that will best prove your position for the divorce hearing. But if you struggle to agree about an issue, the judge will make a final decision about your disagreements before declaring the divorce final.
Filing for a Divorce Hearing
You must file the following documents with the clerk of court in the county where either you or your spouse lives when filing for divorce:
- Complaint stating the facts of your case and your request for a divorce. There is no standard form for the complaint. If you intend to file for property division or spousal support, you must include all supporting facts and your requests in your complaint.
- Summons
- Domestic Civil Action Cover Sheet.
- Affidavit under the Servicemembers Civil Relief Act (SCRA)to protect the legal rights of active-duty service members
- Payment of the court filing fee or application to file as an indigent (1)
After filing your case, you must pay a fee to the sheriff to “serve” your spouse with a copy of your summons and complaint. Alternatively, you can send the documents via certified mail, FedEx or UPS. You cannot, however, just give them to your ex.
What Happens at a Divorce Hearing?
Usually, your attorney will schedule your divorce hearing. Once you appear, you will go before the judge to testify that you and your spouse lived separately for one year. If you have a separation agreement that you and your spouse agree to, the divorce hearing may go quickly.
However, if you both face unresolved issues that you cannot agree upon, the judge will look at the evidence you present to show your side and ask questions to find out how best to resolve the divorce settlement. You may also bring witnesses to vouch for the validity of your position.
You must file a claim for “equitable distribution” before the absolute divorce is final, or you lose the right to ask a court for property division in the future. If this happens, you keep only the assets titled in your name or in your possession. If you own property in both names, it stays in both names even though you’re divorced. You also continue to hold debts in the same manner. In addition, if you don’t file for alimony before the divorce is final, you lose your right to ask a court for alimony in the future.
If you don’t fight for your rights now, you lose them once the divorce is final. For this reason, it makes sense to work out whatever issues you can with your spouse before the divorce hearing. Letting a judge decide the crucial matters of your future life without spending several sessions getting to know you and your spouse can lead to disastrous consequences. There are other legal and binding ways to settle your marital struggles before your divorce hearing.
Other Ways to Work it Out
Mediation
If you have trouble communicating, you may need a third party to guide your separation process. You can work with the 3rd party to create a memorandum of understanding and establish terms that will ultimately go into the final divorce papers.
Negotiation
Negotiations between your family law attorneys keep communication at a distance. When attorneys work together for the best interests of their clients, the negotiations may feel smoother and less heated. Each spouse has time to think about their position, to reconcile it with the other spouse’s needs. There are no disagreements to get through in person with your ex.
We Can Help
At Plekan Law, we understand the separation and divorce process and how to help you get your best outcome. We work with other lawyers, the judicial system, and uninterested 3rd parties to help you and your spouse find ways to resolve issues before attending a final divorce hearing. If your spouse refuses to negotiate fairly, we take matters into the courtroom with well-researched positions, witnesses, and the proof you need to get a fair divorce settlement. We are with you every step of the way, encouraging and helping you move forward in this challenging process. Give us a call and schedule an initial consultation to find out how we can help.