I just want to be divorced but what are these legal words I hear floating around?
There are so many divorce terms and confusing vocabulary being thrown around on the news and in social media – uncontested divorce, contested divorce, difficult divorce, complex divorce, no fault divorce, at fault divorce – what does it all mean?
If you or your soon-to-be-ex resides in North Carolina, these are the important legal terms and vocabulary you should be aware of.
First, North Carolina is NOT an “at-fault” divorce state. What that means is that in North Carolina you do not have to prove that one of you was at fault for any wrongdoing during the marriage in order to be granted a divorce by the Court. As a matter of fact, when you try to get your divorce in North Carolina (absent special circumstances), the Judge will not even listen to issues related to “fault” during the marriage because it is considered irrelevant for the divorce claim in North Carolina. There may be circumstances where you wish North Carolina was an at-fault state so that you can be heard on issues concerning domestic violence, adultery, abandonment, or imprisonment (to identify a few circumstances acknowledged in other states), but since 1965, North Carolina law provides for only a no-fault divorce claim titled “Absolute Divorce.”
Second, regardless of the law providing for an “at-fault” divorce or “no-fault” divorce, a divorce can be contested if there are disputes related to other “realties” in a marriage.
Did either spouse purchase property during the marriage?
Did either spouse become a stay-at-home spouse or parent?
Did either spouse rack up debt on a credit card during the marriage?
…and so on.
If you are asserting an “uncontested” divorce then this means there are no issues related to spousal support or property and debt distribution for a Judge to address. If you have already resolved spousal support issues and a division of your marital property and debt, then you would be filing an uncontested divorce.
Side note: issues related to children (child custody and child support) are totally separate from the separation and divorce matters since children can be born or adopted inside and outside of a marriage. Biological fact: babies can be birthed out of wedlock.
If, however, you have not resolved spousal support or property and debt distribution, you have to preserve the related legal claims when you file for divorce if you want to enlist a Court’s help in resolving those issues at any point in the future. In North Carolina, this type of divorce is labeled a “contested” divorce.
In North Carolina, if you file a claim for Absolute Divorce along with a claim for Equitable Distribution (which has to do with the division of property and debts), or Postseparation Support and/or Alimony (which have to do with financial support for a financially dependent spouse), then you have preserved your ability to ask the Court for help in relation to any property, debt, and spousal support issues regardless of the timeline on the divorce.
This means that once you are able to serve your spouse with a Complaint detailing all of the legal claims that need to be addressed due to your marriage, you can proceed with obtaining a divorce judgment or order (so long as a one year of separation has occurred) because North Carolina is a “no fault” divorce state. The other claims will be split off and track along the court docket as spots become available separately from the divorce process. This is key because the claims of spousal support and/or property and debt distribution will likely take much, much longer to resolve than the divorce itself.
The divorce process in North Carolina is truly that straightforward.
Note: Spousal support or property and debt distribution claims are generally treated as separate claims and will not necessarily prevent you from resolving your divorce. However, timing of the divorce can be a factor in getting legal relief you desire. It is best to work with your attorney to figure out the best timing strategy of your legal claims including divorce.
One further consideration (because there is always an exception in law): The Absolute Divorce process becomes complicated if a spouse contests the date of separation. In order to pursue the Absolute Divorce claim in North Carolina, you have to assert that you have lived separately for a continuous period of 12 months or more in the Complaint. However, if the other spouse responds via court pleading indicating that this date and period of separation assertion is false, then a Judge will have to hear evidence and make a decision on when the date of separation occurred. This is relatively rare; however, since the date of separation can impact the claims of spousal support or property and debt distribution, it is important to get the date of separation solidified.
There is a lot of misinformation and downright bad legal education online, in social media and in the news. With a trusted legal team behind you, do not let these legal terms confuse you.
If you or somebody you know wants to learn more about Divorce, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Prior to practicing family law, I worked for many years in the financial industry. While I enjoyed this career in business, I wanted to do more – I wanted to make an impact on the lives of my community that would empower my clients throughout the test of time. I wanted to work to make lives better and inspire people to make important decisions for themselves and for their families. I completed my undergraduate degree in Business at Queens University in Charlotte, North Carolina. Eighteen years later (2003) I received my law degree from Syracuse University College of Law. And, for over fifteen years, I have represented children through the Council For Children’s Rights Custody Advocacy Program.
