A divorce can be granted in North Carolina only after filing a Complaint with the appropriate clerk of court. This is like any other lawsuit and a divorce cannot be obtained without this lawsuit being filed. The complaint is normally filed in the county where one of the spouses resides. This complaint and a summons (a document issued to the other spouse instructing the spouse that he or she has 30 days to file a written response) must then be served on the non-filing spouse. It can be served in several ways such as (a) by the Sheriff’s Dept. in the county where the non-filing spouse resides; (b) by certified mail, return receipt requested and filing an appropriate Affidavit of Service with the clerk of court; © by specified delivery services such as FedEx or UPS, with appropriate delivery certification; (d) by the non-filing spouse accepting service of the complaint and summons and signing an appropriate acceptance document which must be filed with the court. Under very limited circumstances, the non-filing spouse can be served by publication in an appropriate newspaper but these circumstances are very limited and fraught with traps for the unwary.
After the non-filing spouse is served, he or she has 30 days to file a written response with the clerk of court and serve a copy on the filing spouse or the attorney. If no response is filed or if a response is filed admitting the allegations of the complaint and waiving notice of hearing, the divorce may be granted by the clerk of court if the only relief requested in the complaint is a divorce and/or the resumption of the filing spouse’s maiden name. If any other relief is requested, such as incorporating a Separation Agreement and Property Settlement into the divorce judgment, the divorce cannot be granted by the clerk of court. Otherwise, the divorce may be granted by a District Court judge. In most situations, it is not necessary for a represented spouse who filed for divorce to appear in court. Instead, the attorney can file a motion for summary judgment which allows the judge to enter the divorce based on the pleadings in the court file. This, of course, assumes the non-filing spouse does not file any type of response that denies that a divorce should be granted. The other way a divorce can be granted is with testimony from the spouse who filed for the divorce which testimony is given in front of the judge.
I usually advise clients that a divorce will normally granted within 45 to 60 days after the complaint is filed. This assumes that it will not be difficult and time-consuming to serve the papers on the non-filing spouse. It also assumes the non-filing spouse does not file a response that denies the facts supporting the divorce. This time-line applies only to the issue of divorce. It does not apply to other issues that may need to be resolved by the court such as alimony, custody, child support or equitable distribution.
As with any other issues arising from your separation or divorce, you should discuss these issues with a North Carolina Family Law Specialist. Feel free to contact me, Monty Beck, Western North Carolina Family Law Specialist to discuss these issues.