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Family Law FAQ

Q. What is the first step toward getting a divorce?

A. The divorce process starts with filing a divorce petition. Drafting and filing the petition will be handled by your attorney after consultation with you. A divorce petition contains grounds for the divorce and required information about the individual divorcing spouses.

Q. Can the divorcing couple hire the same attorney to represent both?

A. No. Representing both parties would be a conflict of interest. The attorney can advise only one of the parties. The attorney can, however, draft divorce documents which both parties can sign. That said, while it is not required that you have an attorney to divorce in North Carolina, it is not wise for either party to enter divorce proceedings without the legal guidance of their own attorney.

Q. Is there a way to get a divorce without a trial if the couple is amicable?

A. While North Carolina retains marital fault grounds for spousal support, there is a “no fault” standard for absolute divorce. This means if you are a resident of the state and have separated for more than 12 months, and it is the intent of one spouse to remain separate, you can get an absolute divorce (which means you can remarry, but there may still be issues pending from your separation). While a complaint has to be filed, most divorces are uncontested. Usually, only the party who filed for the divorce testifies. You can also request a “summary judgment” divorce if the parties agree and no one has to appear in court.

Q. Do I have to prove that my spouse is at fault for causing the divorce?

A. No. North Carolina is a no-fault divorce state. You can petition for a divorce without giving a reason, even if the other spouse does not want a divorce.

Q. How long does it take to get an absolute divorce?

A. It usually takes a minimum of 60 days after the claim for absolute divorce is filed for the divorce to become final. However, this step is preceded by 12 months of separation. Each divorce is unique so there may be other factors that take more time to work out. Some divorces are final within the time described here. Other divorces, particularly acrimonious ones, can take longer if the parties don’t agree on the date of separation, or one party contests residency, or one party alleges they have reconciled since they separated among other reasons.

Q. I want to force my spouse to move out of the house. Can I do that?

A. You cannot make your spouse move out of the home unless you get a court order. Each case is unique so you should talk with your attorney to determine your options. If there is an issue of domestic violence and the situation is an emergency, call law enforcement and ask them to remove your abusive spouse from the home – then call an attorney to obtain a Domestic Violence Protective Order and discuss your options for future living arrangements.

Q. Is it trespassing if my ex tries to come into the house after we’ve separated?

A. Yes. If you are legally separated, your ex cannot demand entry to your home or the marital home. If this “domestic trespass” is a strong probability, it would be advisable to change your locks. You should be aware, however, that your ex will most likely be allowed by the court to return to gather clothes and other personal items at a pre-arranged time.

Q. Can my texts, emails and posts be used against me in court?

A. Yes. Online activity is often used in family court as evidence nowadays. During divorce proceedings, you should use great caution about using social media. Current and previous texts, emails and posts, etc. are discoverable in divorce cases through the discovery process. 

Q. Is it okay to date after my ex and I have separated?

A. For purposes of marital fault, only conduct which occurred prior to the date of separation can be used as marital fault. However, if one spouse can prove the other had a romantic relationship with a third party before date of separation, their activity after the date of separation can be used for corroborative purposes. Generally, it is a good idea to wait at least three months after separation to start dating. If you enter into a new relationship immediately after separation, it just invites the other spouse to assume something was going on before you separated – even if that is not the case. Be aware, however, adultery is still a statutory misdemeanor in North Carolina for any married person who has extra-marital sex. Despite that, the district attorney’s office generally has no interest in criminal prosecution of this statute.

Q. Do I need a lawyer to get a divorce?

A. In North Carolina, there is no requirement for you to have a lawyer to get a divorce. However, our state family law statutes are often complex, and the divorce process is rift with potential legal missteps – even for those seeking an uncontested divorce. If you and your spouse have any disagreements on the divorce issues or if you have substantial property or if there are children are involved, attempting to navigate the divorce process without a lawyer could result in you losing important rights and costing you significant money going forward. A skilled family law attorney will significantly affect the positive outcome of your divorce settlement. Also, divorce is an emotional time. Knowing you are legally protected during the process provides security, comfort and decreased stress.


Greenville NC Divorce and Family Law
Attorney Cynthia Mills

Your future will be determined by the legal action you take today! Insure that you take the right path and secure what matters most to you and your family. Let me help you through the uncertainty and emotional stress of your family legal crisis with skill, experience and dedicated representation. Email or call me at 252-752-6161.