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Frequently Asked Questions About Separation & Divorce

Read questions about separation and divorce—and answers from Rice Law.

Separation

Q: Separated and tried to reconcile; spouse doesn't want me to move back.

I've been separated for 17 months, and I've tried many ways to reconcile the marriage. I was the one to move out, because I moved into my husband's house. He was possessive over materialistic things in his house. He moved all of my personal belonging in the attic. He had a "me" mentality instead of a "we" mentality. Do I have grounds (legally) to move back and try to make things work? Even though he doesn't want me to, but he objects to getting a divorce? I feel like I'm caught between a rock and a hard place. I'm tried of dragging the separation and I feel it might be best for us to divorce. (Charlotte, NC)

A: In NC, if you have separated and the other spouse tells you not to return to the former marital home and you do so, you can be criminally prosecuted for domestic criminal trespass. So if he says don't come then don't go! If he agrees to reconcile, then fine. If he does not, you need to consult with an attorney to protect your rights and deal with the issues of a short marriage.

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Divorce

Q: I'm an American living overseas. Can I file for divorce here, or do I have to be in the USA?

I am from America and got married there but currently live in Germany. Can I file for divorce here or do I have to be in the USA? (Hickory, NC)

A: If your spouse lives in NC, you can file for divorce here providing you have been separated for at least one year and your spouse has lived in NC for at least six months. I can't advise you on the laws of Germany. We have done a number of international divorces where foreign living individuals have hired us to prosecute a NC divorce.

Q: I am on Active duty and my wife and I want a divorce. Do we have to be separated for a certain period of time before the divorce?

She wants to do it on grounds of adultery but I have never had any sexual relations with anyone other than her. I am currently overseas. We own a house together. I don't think that I am a resident of North Carolina. I am from Boston, MA and I don't think that I ever changed my official residence. I have never lived in that house because she bought it while I was over here in Okinawa. Further, could I get the house because I paid a majority of the bills with my paycheck? (Jacksonville, NC)

A: If one of you is a legal resident of the State of North Carolina and that person wants to file an action for absolute divorce, he or she needs to have resided here for at least six months and you need to be separated for at least a year. There are only two ways to get divorced in North Carolina. One is based on incurable insanity (and you would have to be insane to want this because you are obligated for the financial support of the insane person for the rest of their life) or one-year's separation (a no-fault divorce). We don't have fault in NC for divorce. We do have a fault based "divorce from bed & board" but that is not a divorce but rather a judicial separation. It sounds like she could be the Plaintiff and sue you for divorce after a one year separation. You could also possibly seek a divorce yourself in MA (talk to an attorney of your home state). Under NC property law, if the house was purchased during the marriage it—like all marital property—is subject to equitable distribution which is usually 50-50 split.

Q: Can a husband file for divorce if his wife lives in another country?

Husband and wife have been married for about 8-1/2 years and separated for 7. They both want a divorce. The wife lives in Italy (where they married) and is not a US citizen. The Husband lives in NC and is in the military. After moving stateside the wife moved back to Italy, pretty much ending the marriage. What steps MUST be taken for him to obtain his divorce (if possible) by the time he returns from his deployment? If for some reason she changes her mind, will it prolong the process? Since she left him, is she entitled to anything? (Fayetteville, NC)

A: Italy is a signatory to the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations. You just need to follow the provisions of the Hague Convention when you file for divorce. Find an attorney who is familiar with these provisions.

Q: I have drawn up separation papers and my wife won't sign them. Can I still file these in the court system without her signature?

My wife left me about 4 months ago and she took what she wanted out of the house and has gotten her own place. She refuses to sign the separation papers. Can I file these without her signature in the court system? Also can I go own with my life? (Whiteville, NC)

A: No, you can't file separation papers that she did not sign with the Court. (If she had signed them, you would record the SAPS with the Register of Deeds and possibly file it as an attachment to your divorce complaint.) You need to file a lawsuit and address equitable distribution and other family law issues such as child custody, and child support. You should consult with an attorney ASAP!

Q: How can I get a separation from my husband of 19 years when he refuses to accept that I want out?

We have 4 children, have tried many marriage counselors, and it just doesn't work. We have tremendous debt, due to his lack of work ethic and denial. How can I get free? I have always been a full-time mother and haven't worked outside the home for 18 years. (Gastonia, NC)

A: You have made all the attempts you can to reconcile your marriage. Ask him to leave. If he refuses, you and the children will need to find a temporary place to live so that you can become legally separated. Once you are legally separated, you can file an action for child custody, child support, post separation support, alimony, equitable distribution (property division) and attorney fees as applicable. You should consult with and hire an attorney to help you with this process. You can get through this but it takes time and is quite unpleasant.

Q: How to divorce a soldier?

My husband is stationed in Miami, FL. Last month my daughter and I moved back to live with my parents in NC because he said he wanted to be alone. Now we want a divorce. He said he is going to file in Florida because it can be over with in as little as 5 weeks. I am worried I will get the short end of the deal in things and I know I need an attorney but I don’t know if I need one in Florida or in NC. I would like to start things myself, but in NC you need to be separated a year before divorce and he doesn’t want to wait that long. I have concerns about child custody. Please help! (Carolina Beach, NC)

A: You first have to determine which state is the proper forum. The real question would be how long you lived with him in Florida. Also, what is his state of residence? If you were absent from NC for more than six months, then the child custody issue cannot be decided in NC and you would need a FL attorney. If you were not absent from North Carolina for six months, you should litigate custody in North Carolina because that is the child’s home state. And you don’t have to wait a year in North Carolina to address all of the issues of the marriage. You only have to wait one year to file for divorce. Waiting can actually hurt your ability to get spousal support and can hurt in other ways also. See an attorney ASAP!

Q: Will an Absolute Divorce work in our case?

If my wife and I agree on child custody and equitable distribution of our marital property, can we just get an Absolute divorce? Can we document this on paper with it notarized and have it filed with this divorce? We have our own bills, cars, retirements, etc. Only the house and child custody needs to be documented which we've already agreed on. Does this need to be part of the divorce or can it just be a separate legal document since it's signed by a notary and later used by either of us in a civil law suit if needed? (Raleigh, NC)

A: If you and your wife can agree on everything, that's great! I always recommend that parties try to work out property division, custody, etc. (and I advise my clients to let us advise them about the fairness of the agreement before it is finalized). But please don't try and do your own agreement. We've had clients pay thousands of dollars to set aside agreements that were created without lawyers, or to attempt to defend a lawsuit to set aside an agreement done without lawyers. Save yourself a great deal of time, energy, and effort by paying an attorney to put your agreement in writing—and in proper form. A notarization is not enough. In a recent case, the parties downloaded a form they found on a Web site and signed it—but it did not meet NC's requirements. We can help with a Separation Agreement & Property Settlement (SAPS) through our Virtual Law Office.

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Notice & Disclaimer: These questions were posted on Avvo, Lawguru, or a similar service. Some have been slightly altered to correct grammar while others are posted intact. This information has been posted for educational and informational purposes only. You should seek help from an attorney licensed to practice divorce and family law in the State of North Carolina because the facts of your particular situation may warrant a different answer. No attorney client relationship created through the use of this Web site. Information pertains to the State of North Carolina only.


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