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Join Sarah Hink and attorney Ava Jeanette from New Direction Family Law as they delve into the intricate process of filing for absolute divorce in North Carolina. Learn about the requirements such as the mandatory one year and one day physical separation, the importance of resolving property and alimony issues beforehand, and the nuances related to service and court filings. They also discuss unique scenarios involving military service and incompetency. Whether you're doing it yourself or seeking professional help, this episode provides essential insights to guide you through the divorce proceedings.
00:00 Introduction and Guest Introduction
00:39 Understanding Absolute Divorce
01:33 Filing for Divorce in North Carolina
04:06 Checklist Before Filing for Divorce
05:17 The Divorce Filing Process
06:18 Service Issues in Divorce
07:53 Court Procedures and Attorney Involvement
14:02 Special Cases and Unique Scenarios
16:27 Conclusion and Final Thoughts
Learn more about New Direction Family Law: https://newdirectionfamilylaw.com/contact-us-today/
Creators and Guests
Host
Ava K. Jennette
Associate Attorney Focus Areas: Family Law, Child Custody, Child Support, Post Separation Support, Alimony, Property Division, Domestic Violence Protective Orders, Family Law Litigation, Separation Agreements, Prenuptial Agreements, and more. Experience: Over 2 years Practice Areas: Wake, Durham, Johnston, and Harnett counties
What is Ex-it Strategy?
Your no bullsh$t guide to divorce with experienced attorneys from New Direction Family Law and guests and professionals who have been there. Unfiltered discussions to help you move from victim to victorious and from bitter to better.
[00:00:00]
Sarah J. Hink: Hi, everyone listening. It's Sarah Hink, one of the attorneys of Managing Partners of New Direction Family Law. Elizabeth Stevenson is not with us in the studio today. She's actually in a three or four day long trial in, in Durham. So she's busy, she's working, she's doing great, kicking ass, taking numbers.
Instead we have attorney Ava, Jeanette with us, who is also an attorney at New Direction Family Law. We are gonna talk about, um, absolute divorce in this episode and the filing and the general process and how it can be one of the easiest things and the most complicated things.
So, Ava, tell us a little bit about yourself and then get us started on, you know, the first episode. Filing for a divorce.
Ava K. Jennette: Yeah. Well thanks for having me Sarah. [00:01:00] Um, I am excited about this, but, so as Sarah said, my name's Ava. I've been practicing family law for about two years now. Um, and I really like it thus far.
It's, it's very interesting and we have lots of interesting and complicated stuff like absolute divorces. Mm-hmm . So, um, yeah, I can definitely talk a little bit about that 'cause I do most of them at our firm. Yeah.
Sarah J. Hink: You handle most absolute divorces at our firm. And the reason for that is because they are very systematic and they can be or they should be.
Mm-hmm . Um, and as far as the process of filing, so when can you file for divorce in North Carolina?
Ava K. Jennette: Yeah. So in North Carolina you have to be physically separated. That means living in different residences for a year and a day before you can file for divorce. Um, a lot of people are kind of. Shocked by how long of a period that is, but that's what you need to do.
Sarah J. Hink: Okay? So living in a different room in the house, [00:02:00] that doesn't count. That does not count. What if you and your spouse partner agree to file earlier than that?
Ava K. Jennette: I would not recommend that. Um, you really, even if you guys are, you know, getting along well and like you agree on this, there's nothing to stop your spouse in the future from coming back and telling the court that you lied.
There are all sorts of consequences. Um. If the divorce gets thrown out in the future and it's really not something that you wanna mess around with.
Sarah J. Hink: Yeah. So if you get married in the future and then your other divorce gets set aside, then you can get hit with bigamy. Yeah. ,
Ava K. Jennette: we don't like bigamy care. We don't like
Sarah J. Hink: bigamy.
That's, you know, also a criminal statute, so you could be charged criminal criminally for that. So make sure that you go by the process that you wait your 12 months in a day. Mm-hmm .
Ava K. Jennette: Or
Sarah J. Hink: 366 days to be exact. Mm-hmm . Mm-hmm . From when you separate, when you move out of a house or when your spouse moves out, and of course talk to an attorney about [00:03:00] that too.
'cause it, there can be a slippery slope as far as what your actual date separation is.
Ava K. Jennette: Yeah, absolutely. It's not always, um, as cut and dry in some relationships. Yeah. We see that a lot. .
Sarah J. Hink: I've seen people where it's normal for them to spend a long, like a large period of time away from each other during the marriage.
Mm-hmm . Um, traveling for work or going to go visit family back in a different country. And that was kind of. That was what would happen in the relationship. So it wasn't unique to that time period. And they would leave to go back to India for a month to visit their family and then come back and reside at the marital residence and then leave again.
And they wanna go backtrack to when they first left the first time. And it's, you know, trying to figure out exactly what happened in that scenario For sure. So it can't be complicated.
Ava K. Jennette: Yes, definitely. And unfortunately too, sometimes folks are like, I'd say kind of so off and on again, that they honestly have a hard time remembering even what their official move out was.
So, you know, if you talk to an attorney, we can kind [00:04:00] of help you to figure out what that is. Yeah.
Sarah J. Hink: So it's been 366 days for somebody. Is there anything that they need to go through as checklist otherwise before they file for divorce that they need to do?
Ava K. Jennette: Yes. So before you get divorced, you definitely need to, um, go through your checklist of your property issues and alimony, um, because once you were divorced in North Carolina.
Um, you can't file for alimony anymore. And the property issues, we call it equitable distribution here in North Carolina, um, can get very complicated.
Sarah J. Hink: Yeah.
Ava K. Jennette: Um, which we've seen happen.
Sarah J. Hink: It's just best to assume that if you have a divorce judgment entered before anyone files a claim for those issues of division of property or alimony, that your chance to file those are kind of out the window.
Yeah. There's some small, you know, incidences where you can maybe set aside the divorce or go back in and refile, but for the most part, you lose your right to go after alimony or equitable distribution if the door [00:05:00] divorce judgment goes through before you file a claim for those. Yeah, that's correct. So definitely make sure you, you do that.
Have your separation agreements done and signed by the time you file for divorce, or if you're gonna file in court for divorce for absolute divorce, make sure that you're filing for those other claims as well.
Ava K. Jennette: That is correct. Okay. Um, yeah,
Sarah J. Hink: so we file for divorce. What's the process of that?
Ava K. Jennette: So the process is you unfortunately do have to file a lawsuit.
Mm-hmm . Um, it doesn't have to be, you know, scary or like, I hate you to your ex. Um, but you do have to actually file a complaint, in court. And that document is fairly simple once you've handled, you know, all the other property stuff like we talked about, um, but you essentially lay out that you've been separated for a year and a day.
There's some other things in there. Um, you filed that with the court and then. The whole process begins. Um, I'd say the whole thing takes on average about two to three months. Does that mm-hmm . Sound, right? Yeah. Yeah. That's,
Sarah J. Hink: that's generally, that's a, a good, easy [00:06:00] case. Yeah. .
Ava K. Jennette: That's true. Yeah.
Sarah J. Hink: With no hiccups along the way.
Yeah. And, um, some counties out there do have their own divorce packets. So if you're listening in a different county that's not near us, you know, talk to an attorney out there. Also look at the court of clerk, the, the Clerk of court's websites. Mm-hmm. And they, they have some like packets do it yourselves.
Um, but there are some issues with doing it yourself and that runs into a lot of times the problem with service. Yes.
Ava K. Jennette: So what
Sarah J. Hink: are some issues with service? The divorce complaint?
Ava K. Jennette: So, some issues with service can be number one, you may not know where your ex is, you know, it's been a year and a day, and you may have lost track of them.
Um, so that can be an issue. They could not want to get divorced. Mm-hmm . And Dodge service and that, um, can, you know, be a huge pain in the butt. Um. Trying to think some other issues you Yeah.
Sarah J. Hink: They might think it's like child support that you're trying to serve on them. That's true. Yeah. And try to get outta dodge that way.
And some people wait longer than mm-hmm . You know, a year to file for divorce. Absolutely. I've seen people [00:07:00] wait 10 years and it's like, well, how do we find them now? That's really complicated. Yeah, for
Ava K. Jennette: sure. Um, especially if they've like moved outta state or out of the country. Yeah. Um, sometimes too, you can even just have like basic problems of the sheriff comes and they're at work or, you know, that sort of thing.
So, um, service can cause some issues and that can make the process take a lot longer than you're anticipating. Yeah.
Sarah J. Hink: That can take longer than the two to three month time period. For sure. Um, and he also, it's very . There's a few allegations that you put in the divorce complaint, but they're very important allegations to allege.
So that's why it's important for people to use an attorney to make sure they have everything correct, the correct date of separation, the correct language mm-hmm . About, you know, residing apart and one person wants to be divorced. Right? And anything else that needs to go in there. So you file that, you get it served.
Mm-hmm . And so procedurally what can happen next?
Ava K. Jennette: So procedurally, what can happen next is that your ex could file [00:08:00] something called an answer, and it could be just where they answer and say, yes, all this is correct. Um, let's get divorced. Or they could, um, come back and say, you know, I'm filing for alimony, or I'm filing for equitable distribution.
Which again, hopefully you've gotten those issues straightened out before this mm-hmm . But, um, that could be something that happens. They could also say that you haven't been separated for as long as you have. Um. Trying to think. I think those are the biggest. Yeah.
Sarah J. Hink: Or they just don't respond at all. That's
Ava K. Jennette: true.
Yeah. Which is
Sarah J. Hink: your best case scenario. Mm-hmm . That's generally what we want. . Yeah. Just no response or at least alleged, you know, saying that everything in the allegations was true. Right. [00:09:00] And if that's the case, if they say everything is true in the complaint or they just don't respond and there's no other claims filed, does that make the case easier?
Like what happens next after that?
Ava K. Jennette: It does. So if they don't do anything or they say, yeah, that's all [00:10:00] good to go, um, then you essentially have to either wait 30 days from filing if they don't answer, or I guess if they answer, you could go ahead and do your motion for summary judgment at that point. Um, which is essentially where you're asking the court to grant your divorce.
It's a little bit mm-hmm . You know, more complicated than that, but that's the basic. Then you have to wait 10 days before you can get a. A hearing 'cause you have to give notice to the other party, , which is a constitutional issue. Mm-hmm . But, um, then generally, so let's say 30 days plus 10, you've got about 42.
60 days later, you're hopefully going to court and getting your divorce at that point.
Sarah J. Hink: Yeah. So in Wake County, they do like pro se divorces, which is when someone does it without an attorney. And in those scenarios, the person that files needs to, needs to go to court, needs to be in front of the judge mm-hmm
And ask for the divorce. Correct. Yep.
Ava K. Jennette: That is all right. Yeah.
Sarah J. Hink: [00:11:00] But if they use you or another attorney, is there a different process? Do they need to go to court? If it's a simple one like that?
Ava K. Jennette: Yeah. So if they have an attorney, um, they don't need to go to court. I typically tell people, you don't need to be there.
Your ex doesn't need to be there. If they don't wanna be, um, you know, we'll handle it for you. Mm-hmm . Um, but if you don't have an attorney, you do need to be prepared to actually go to a courtroom. Yes. And do it yourself.
Sarah J. Hink: Yeah. And have everything correct. Make sure that it mm-hmm . I filed everything correctly.
Make sure that there's been service that . The indication of service is in the court file. Right. You know, you can't just say the judge like, yeah, I served it, but Right. Judge, like, I can't believe you. There needs to be an affidavit of service in the court file, either from the sheriff or however else you serve them.
Mm-hmm . Um, in Wake County, we do our divorces on Friday still. Right? Yep,
Ava K. Jennette: that's right.
Sarah J. Hink: Say party Friday, get a divorce, go party afterwards. .
Ava K. Jennette: Exactly. . Yeah.
Sarah J. Hink: And it can be a fun time when you do need to go in person. So, um, are there instances when you do have an attorney and you still might have to go testify at a divorce hearing?[00:12:00]
Ava K. Jennette: Yes. So if typically this happens when you're contesting the date separation. Mm-hmm . So let's say, you know, you say you were separated on New Year's Day, but your ex says, no, we separated at Christmas. If, even if it's been over a year and a day, the court typically still wants to have a, a firm date on that.
So sometimes, and that can also affect like property issues and all sorts of stuff. So, um. If that is going to be a problem, sometimes you have to go to court and testify about why you think it's the state and he thinks it's the state. Yeah.
Sarah J. Hink: The simplest facts can really mess up the case. Yes. If parties do not agree.
Mm-hmm . And a lot of times people will say to me, oh, you know, I don't, I think he'll sign off on the divorce, but they don't really have to sign off on the divorce. You can get a divorce even if your ex doesn't want to be divorced. Correct.
Ava K. Jennette: Right. And I get that question a lot too. Yeah. They're like, well, he's not gonna want this.
And it, it really doesn't matter here as long as they're not gonna dodge service. [00:13:00] Mm-hmm . Or you know where to find him. Um, in North Carolina, it's in, you know, no fault state and really all you need to get divorced is being separated with the intent to remain separate and apart for a year and a day.
Sarah J. Hink: Yeah.
No fault. Divorce is huge and mm-hmm . Um, I don't know that all states have it. I don't think so, but I
Ava K. Jennette: don't think so either. But I don't know.
Sarah J. Hink: I know in one of those very southern states, Louisiana, maybe like more southern than North Carolina, the . Like require, um, like counseling before you can file for divorce.
And there's, wow. You know, all the, all the rules are different in every state about divorce. The waiting period is different. Mm-hmm . But you have to prove or allege, um, you know, if you're in those real like southern states, you might have to go to like bible class. I don't know. I think it's is like in Louisiana, have to look that up later just to, you know, jog my memory about that from law school.
But in North Carolina it's the, you know, year and a day and no fault. So it doesn't matter why you're getting divorced, why you wanna divorce, it doesn't matter to the court. At least that's the [00:14:00] way it is now. And hopefully it should stay that way. Yes. Um, and there are some interesting scenarios about divorce when you are divorcing someone that might be incompetent.
There's actually a three year waiting period, I believe, correct.
Ava K. Jennette: I believe so I have not luckily have not come up on this issue yet. Yeah. Um, I don't know if you've had a case like that. I
Sarah J. Hink: have, I had one case when I was probably one or two years outta practice and that just, you know, threw me for a loop.
I was like, okay, you're claiming that he's incompetent and can't file for divorce yet. It was very complicated with spousal support claims and getting medical doctors involved to prove competency.
But there is little niche area where you have to wait longer than a year. So if that's, if that's the case, then definitely speak to an attorney about your divorce and I'm sure there's good reasons for that. If you know a spouse is incompetent, making sure that they have an attorney, a guard ad litem to represent them if they do not.
Want the divorce or what the intent of the divorce is. But [00:15:00] I've seen some people wanna get a divorce to kinda like separate finances when there might be a debtor involved or medical issues involved, um, where they wanna keep their relationship, they love their spouse, but there might be medical debtors out there and your spouse might have like cancer or something like that, and concerned about the debts debtors coming after you later want the divorce.
Um, so that's a very complicated issue because under the law you can't live together anymore and you're supposed to hold yourself out to be separated to your friends and family. Um, so if you're thinking about that and you're listening out there, speak to an attorney about other ways to protect yourself if it, that's the issue.
I'm trying to think of any other unique
Ava K. Jennette: issues
Sarah J. Hink: with divorces that I've seen.
Ava K. Jennette: The one I could think of is military service in mm-hmm . If, and I haven't dealt with a ton of these, but, um, one of our coworkers, Ashley, deals with a lot of military divorces. Mm-hmm . So when they do come up, it's typically her, um, her folks.
But, um, in the military, [00:16:00] if your, if your spouse is active duty, they have certain extra protections, um, in lawsuits. So, you know, if you're soon to be ex-spouse is active duty, I would definitely talk to an attorney about whatever, um, issues could pop up there. Yeah.
Sarah J. Hink: You're waiting, my period might be a little bit longer just due to where they are in the world and, um, absolutely.
If they're deployed or not. Mm-hmm . Or where they're stationed. So that's a good point to make as well. Otherwise, if you went out and it's been 3,066 days and ever, all the other issues are taken care of, you can get out, correct? That's correct. All right. Ain't that some shit. . [00:17:00]