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Divorce Frequently Asked Questions (Divorce FAQ)

Answers to Common Questions from Clients Going Through a Divorce

Can I Revert to Using My Maiden Name?

Upon divorce, a spouse who has changed her name upon marriage can petition the court to resume using her maiden name. It is important that the spouse that wants to resume her maiden name requests to do so in the divorce complaint. If you have been served with a complaint for divorce, this request should be made in an answer to the complaint.

If you are a same-sex couple and you choose to change your name while married, you have the right to resume your maiden name as well. A review of the divorce order by a competent attorney (also known as a divorce decree) to ensure that it includes language that allows you to resume your maiden name is highly advised.

If your divorce was already granted and you did not request to resume your maiden name you may still legally change your last name. However, you will have to file a separate action in special proceedings court. Lastly, if your spouse changes her name in marriage, there are no legal remedies to force your spouse to resume her maiden name if she wishes to maintain her married name after divorce. The request to resume a maiden name must come from the person that changed her name upon marriage.

Do I Need An Attorney for My Divorce?

Many people are able to file and complete a divorce without the assistance of an attorney.  Most county clerks provide pro se domestic packets which make this process as easy as possible.

While it is not necessary to have an attorney for your divorce, it may be helpful to consult with an attorney prior to filing for divorce or having a divorce granted.  Getting divorced can have an adverse affect on health insurance benefits, retirement benefits, access to accounts, title to property, the division of marital assets and debts, alimony, and post-separation support.  Many people believe that if they do not have any assets a divorce should be simple. However, there are other consequences to divorce that include dividing marital debt and dividing personal property, as well as a spouse’s right to alimony and post-separation support.

In addition to divorce laws which can be tough to understand and interpret, many counties have local rules which must be followed in order to pursue your divorce, alimony, or equitable distribution action.   For example, Wake County requires parties to turn over certain financial documents to the opposing party within strict timelines.

We would strongly recommend that you meet with an experienced divorce attorney prior to filing for divorce and prior to the divorce being granted to preserve your rights.

What Impact Does an Affair Have On My Divorce?

If both spouses make approximately the same amount of money it is unlikely that an affair will affect a spouse’s rights to alimony.   Therefore, an initial inquiry to determine whether there was a supporting/dependent spouse relationship during the marriage is necessary in determining whether alimony should be awarded.

If there is a finding that one spouse is a dependent spouse and the other is a supporting spouse, an affair can have a substantial impact on whether or not alimony is awarded, the amount of alimony awarded, and it’s duration.   N.C. General Statutes § 50-16.3A controls in what circumstances alimony will be awarded and what factors come into play in determining the amount and duration of an award.  In some circumstances, an affair will bar a dependent spouse from receiving alimony or require a supporting spouse to pay alimony.   There are exceptions to each of these requirements, such as if both parties had an affair and whether the actions of either spouse were condoned by the other spouse.

Out of court settlements can also be adversely impacted by marital misconduct.  Affairs usually result in feelings of resentment between spouses, which can make out of court settlement extremely difficult.  It is not uncommon for a spouse to feel entitled to more support or property due to the marital misconduct of the other spouse.  In some instances, infidelity comes into play, however it is not necessarily relevant to custody and equitable distribution issues.  Having an attorney by your side who can advise you as to what impact if any an affair has on your case, can save you time and resources in the long run.

Do I Need Grounds for Divorce in North Carolina?

Since North Carolina is a no-fault state, spouses need not present any reason to get a divorce.  There are only two requirements to divorce your spouse in North Carolina. First, the parties must live separate and apart for at least one year and a day.   Second, one spouse must intend to end the marital relationship.

In addition, the law does not require both spouses to agree to the divorce.  Sometimes one spouse wants to remain married while the other spouse and wishes to object to the divorce.  Even if this is case, upon proving that you’ve been separated for a year and a day, the law requires that a divorce be granted.

The martial actions of one or both spouses in a marriage is relevant in determining the amount and duration of alimony as well as division of property in an equitable distribution action.

I’ve Been Served with Divorce Papers, Help!

As soon as you are served with divorce papers it is very important that you speak with an experienced family law attorney immediately. There can be dire consequences to failing to file an answer or counterclaim to a divorce complaint within certain time limits.  You have thirty days from the day that you are served with the divorce complaint to file an answer and any counterclaims that you may have against your spouse. You may also ask for an extension of time to file an answer prior to your thirty days expiring. If you fail to answer the divorce complaint, a judge can enter a default judgment against you and your spouse will be granted the divorce.

Also, if you wish to resume your marital name, it is important to file an answer for divorce requesting that the judge allow you to resume your maiden name. If you do not, you will have to file an action in special proceedings to legally change your name. This will require additional fees and a separate court proceeding.

If a divorce is granted and the other spouse did not preserve his or her right for equitable distribution, alimony and post-separation support, that spouse may lose the right to petition the court to address these issues.  In short, it is imperative that you contact an attorney immediately to discuss your legal rights and specific situation.

Is Mediation an Option In My Divorce?

In many cases, mediation is not only an option, it is mandatory. In North Carolina, if a party files for equitable distribution the parties will be required to attend mediation prior to having a trial.  The court requires that the parties attend mediation in an attempt to resolve the parties’ marital assets and debts. It is also possible to attend mediation prior to filing for equitable distribution. 

Mediation allows the parties the opportunity for an experienced mediator in family law to discuss possible settlement options with the parties. There are some situations that mediation may not occur.  If the parties have a history of domestic violence or substance abuse the parties may not be ordered to attend mediation for safety reasons.  Furthermore, if one of the parties lives out of county, they may be able to waive mediation.

At a typical mediation both parties are represented by their respective attorneys. The mediator is usually an attorney.  It is not necessary that the parties be represented by an attorney to participate in mediation. If the parties are able to come to an agreement during mediation, the parties can enter into a separation agreement or a consent order.

How Do I Enforce My Divorce Order?

Court orders and separation agreements are enforced by a court of law differently.  A separation agreement is a contract between the parties. If spouses enter into a separation agreement and it is not incorporated into a divorce decree, the parties must file a breach of contract claim with the court in order to enforce the agreement.   Orders or incorporated separation agreements provide the parties with more efficient options for enforcement.

An order that is signed by a judge that resolves equitable distribution, such as marital assets and debts, or the obligation to pay child support, alimony, and post-separation support are enforceable by contempt of court. The aggrieved party can file motion to request the trial court order the offending party to show cause as to why the offending party should not be held in contempt of court.  The aggrieved party can request the court to award attorney’s fees to the aggrieved party for the expenses incurred to enforce the court order.  If found to be in contempt of a court order a judge can fine the party, place the offending party on probation, or put the party in jail.

Consult an experienced attorney about you specific situation so that you can obtain legal advice about how to enforce an order or how to defend yourself from a motion and order requesting that you be held in contempt of court.

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What to Expect from Your Raleigh Divorce

With over 35+ years combined experience guiding clients through divorces, many clients have similar questions about the process.  It is our hope that our answers can guide you toward the right approach for you.  Contact us if questions remain about how to proceed with your Raleigh divorce case.