Because society has an interest in the formation of families and the successful rearing of children, laws have been enacted governing the rights of men and women not only to enter into marriage but also to dissolve marriages. The terms, Separation and Divorce, have clear legal meanings in North Carolina, and anyone considering either step should realize that in addition to the profound emotion stirred by the breakup of a marriage there are important legal matters which must be taken into consideration. The purpose of this pamphlet is to provide general information about separation and divorce. Because the dissolution of a marriage is a serious legal matter, a person entering into or already involved in the breakup of a marriage should have competent legal advice from an attorney.

There are now only two grounds for divorce in North Carolina. All fault grounds have been abolished.

If a husband and wife have separated with the intent of ending their marital relationship and have lived separate and apart for one year without resuming their marital relationship, either may file for divorce, provided one of the parties has been a resident of the state for at least six months. Spouses living in the same house are not living separate and apart. Whether there has been a resumption of the marital relationship during the separation period will be determined by all of the circumstances. Isolated incidents of sexual intercourse during the separation period will not be considered a resumption of the marital relationship.

Where a husband and wife have lived separate and apart for three years because of the incurable insanity ofone of them, the sane spouse may petition for divorce.

Unlike a divorce that dissolves a valid marriage, an annulment is a legal decree that a marriage never occurred. Annulments are rare and only granted in unusual circumstances. For example: a marriage between two persons, one of whom is legally married to another, is bigamous and void and can be annulled by court action.

Long before the year expires, you should try to resolve the questions of alimony, child custody, child support and division of property. These are complicated questions which should require the advice of counsel. If you and your spouse can agree on the resolution of the issues, a separation and property settlement agreement is an effective tool. To be valid, a separation agreement must be in writing and meet certain other requirements. If you cannot agree, you may need to seek assistance from the courts.

The proper court can, if necessary, make temporary decisions about:

Custody of minor children.

Restraints to keep your spouse from interfering with your personal liberty.

Who will live in the home you and your spouse once shared.

Support payments for a spouse or children.

Limitations of disposal of property to ensure payments of support or to protect a spouse?s share in that property.

Allocation of the ownership, possession and/or use of certain property.

Visitation rights to the spouse who does not have physical custody of the children.

Other temporary orders authorized by law.

A formal document, called a Complaint, is filed with the appropriate court. This includes information on the

marriage, residency, present living arrangements, children of the marriage, and the specific ground claimed for seeking divorce (e.g., one-year separation). A copy of the complaint must be lawfully served on the other spouse (usually by sheriff?s delivery or certified mail return receipt requested).

You should consult a lawyer promptly for advice. You may lose rights if you do not act to protect them. You may contest the reason claimed for the divorce, or you may contest (or need to counter-sue for) child custody, support, post-separation support, alimony and/or property division by filing the proper papers and appearing in court. The case will be decided without your appearance if you do not contest any portion of the complaint and if you do not wish to say anything to the judge. However, you will be bound by the judge's decision, whether or not you appear. Failure to follow court orders could result in a citation for contempt of court. Claims for equitable distribution (property division) and alimony must be made before a divorce judgment is entered or these rights are lost. You may wish to contest or ask for equitable distribution and/or alimony and you must file legal pleadings to do so. Whether or not you contest any part of the divorce, you may wish to consult an attorney immediately for professional advice on legal problems, the choices you can make, and the consequences of your actions or your failure to take action.

The welfare of minor children is of major concern to the courts. Property rights and welfare of the adults involved are secondary. Neither parent is automatically entitled to custody of any child. The judge may consider many factors in deciding what custody arrangement is best.

Post-separation support and alimony are spousal support. In North Carolina, a spouse who can establish financial dependency may be entitled to alimony from the other spouse. While the most important facts on alimony are financial, the judge can also consider misconduct that occurred before the spouses separated in deciding questions about alimony. Because of the many facts that are relevant to whether a spouse gets alimony and how much the spouse should receive, you should consult an attorney with your questions. You forfeit your claim for alimony if you have not put it forward before a divorce is granted. North Carolina law requires both parents to assume financial responsibility for their children, and if the parents cannot reach an agreement on child support, the presiding judge will make the decision, based primarily on evidence of both parents' income. Either spouse may claim child support in the divorce action.