Hi, my name is Claudia Soto, and I am an attorney at NorthPointe Law Group. I represent clients in divorce proceedings, and the most common question I get, is: “When can I get my divorce?” My client usually ask that question, but are really looking for the answer to a multitude of question that are actually resolved during the separation period and not at the time of divorce. There is a big difference between divorce and separation.
North Carolina has two requirements for an absolute divorce. The first is a requirement that the parties be separated for a period of one year prior to the filing of the divorce action. Separated is defined as living separate and apart for the required period. Living separate and apart means that the spouses have to live in separate residences. It is not enough to sleep in separate rooms in the same house, or in the basement of the same house. Each party must live at a separate address. The second requirement for an absolute divorce in North Carolina is that one of the parties to the action be a resident of the state six months preceding the action. These are the only two requirements to file an action for absolute divorce in North Carolina.
Now in order to be able to deal with the marital estate, which is what most spouses really want to know about, you have that one year period to resolve or raise any claims as they relate to the marital estate. One claim that can be raised is equitable distribution. In an equitable distribution action, you identify, classify (marital, separate, divisible) and distribute (assets and liabilities) the property held by the parties.
Another claim is post separation and alimony. This is the financial support sought by a dependent spouse from the dependent spouse.
If the parties are unable to come to an agreement on the marital claims discussed, then the North Carolina court can step in to enter an order on how the marital estate will be distributed, and whether financial support will be due to the dependent spouse.
Even though they are not required, a separation agreement is a better option for the parties in that, it is a cheaper and quicker way to split assets and debts. It also allows the parties to control how and when things happen. A separation agreement is a contractual agreement in which both husband and wife agree on the marital estate distribution and that will usually include, real property, personal property, checking accounts, retirement accounts, credit card debts, loans, investments, and business. This is not an exhaustive list, but includes some of the most common assets. This agreement can be done well in advance of the divorce within the one year of separation. If no agreement is reached, you have to make sure that you get any claims filed with the court prior to the one year of separation. If the divorce is finalized without the filing of marital claims, then you lose the right to your marital claims.
If you have any questions or would like additional information, please contact our office at 704-584-4111.