Now there is a phrase that pretty much sums up most separations and divorces. Did you know that within family law, and any area of law for that matter, that contempt plays an important, but sometimes confusing role? Let's chat about contempt as it applies to the law and we'll leave the Oxford English Dictionary definition alone.
We have reached the final part of my seven part series regarding the basics of North Carolina Family Law. If you need to get caught up to speed check out our archives. Today we are coincidentally going to talk about obtaining the final divorce decree. North Carolina divorce is governed by NCGS 50-6 and has essentially two elements. The first element is that at least one party must be intentionally separate and apart from the other party for at least a year and a day. I'm aware the statute says one year, but the extra day is necessary because you don't want to file it on day 365. Safer to file the divorce complaint on day 366. The extra day won't kill you, but a Judge may kill your divorce claim if you file too early. The second element is that at least one party be a resident of North Carolina six months or more prior to filing suit. If the Plaintiff is not a NC resident then the suit needs to be filed in the county in which the Defendant resides.
CAN WE LIVE IN SEPARATE PARTS OF THE HOUSE AND BE CONSIDERED SEPARATE?
This is a very common question and the simple answer is no, you will not be considered separated if you continue to share the same roof. To be considered separate, at least one of the spouses must intentionally cease cohabitation and actually be physically separate from the other spouse for that year and a day time period we talked about earlier. Only one of the spouses have the intention to cease cohabitation (and actually done so) for the separation to be valid.
WHAT IF WE GET "BACK TOGETHER" FOR A NIGHT OR TWO?
Resumption of marital relations (voluntary renewal of the husband and wife relationship) can stop the separation process and force a new separation clock to start ticking. However, infrequent and isolated incidents of sexual conduct between the parties will not mean that the parties have resumed marital relations.
PROOF OF SEPARATION DATE
Assertion of a date of separation by the complaining party on a divorce complaint with a verification page will be the Plaintiff's (complaining party) proof that the parties separated on the date indicated. The spouse that is the Defendant can dispute the date if they believe the separation actually occurred later and they can provide some sort of physical proof if they have it. This is pretty rare, but I tell my clients to be honest when providing facts in any court document. I do that because a verification page is going to be notarized and the party signing the verification page is essentially attesting to the court that what they are saying is true and correct to the best of your knowledge. So don't lie. Lying on a court document will be perpetrating a fraud upon the Court. Give the date of separation as you best recollect it.
I'VE MET THE SEPARATION REQUIREMENT AND RESIDENCY REQUIREMENT, NOW WHAT?
Great question. So to institute any lawsuit in North Carolina there needs to be a summons and complaint filed with the Court then served on the Defendant. A summons gives the Defendant information about what county and division the action is taking place (Ex. Wake County District Court) and who the other party is along with their mailing address and attorney's information, if applicable. The absolute divorce complaint will state the facts relevant to the two main elements, which are year and a day separation timeframe and residency requirements along with what the Plaintiff is seeking as an outcome (prayer for relief).
The next thing you must do after filing is get service on the Defendant under Rule 4 of the North Carolina Rules of Civil Procedure. Service is usually completed by Sheriff or by Certified Mail, but the rule allows for others (like process servers) to effectuate service on a Defendant.
Once the Defendant is served they will have thirty (30) days to file an answer or responsive pleading with the court (you can ask the court for a 30 day extension if need be). If no answer or responsive pleading is filed, then the Plaintiff can file a Motion for Summary Judgment under Rule 56 or file Motion for Default Judgment under Rule 55. Both can result in an Absolute Divorce being entered by the Court.
DOES THE FACT THAT I OBTAINED A FINAL DIVORCE DECREE OR JUDGMENT EFFECT ANY OTHER AREAS OF FAMILY LAW?
That is a big affirmative. However, it only pertains to Equitable Distribution, Post-Separation Support and Alimony. If an ED, PSS or Alimony claim has not been filed by one party and a final divorce decree/judgment is entered, then both parties are kept from asserting any of those claims. That's why it is very important to contact an attorney once you are served with a divorce complaint. Once that final divorce decree is entered then your claims for ED (property distribution), Post-Separation Support and Alimony are gone if nothing is pending for those matters.
CAN I GET MY NAME BACK?
Again, a big affirmative on this as well. If a Plaintiff wishes to return to their maiden name the Plaintiff should put that request in the facts and prayer for relief. If the Defendant wants to resume their maiden name, then I would advise on filing an answer to the complaint specifying that request. If the divorce with a name change provision is granted by the court, then all that is left is filing this form. Once you have the proper court documents the real fun begins in changing your name. That's right, you get to go through the process with the DMV, North Carolina Department or Transportation and the Social Security Administration. Luckily for you, the information on how to do that can be found here.
On that note, this will conclude the North Carolina Family Law Basics (7 Part Series).
Don't fret though as I will be updating this blog weekly with more information regarding North Carolina Family Laws.