10 Need-to-Know Answers about North Carolina Divorce

By Tonya Smith

There’s a lot of talk these days about the negative effects of coronavirus on couples. We are hearing of divorces brought on by these trying stay-at-home, self-isolating times. Singer Kelly Clarkson recently hinted at marital struggles in the current environment.

No matter the impetus for divorce, there’s much trepidation going into the ending of a marriage and no doubt also a lot of Googling about what to expect. Here are answers to 10 of the most frequently asked questions about divorce in North Carolina, where I practice family law.

  1. What’s the difference between divorce and separation?

North Carolina requires a separation period of at least one year before you can file for divorce. The date of separation begins as soon as you and your spouse live in separate residences. You cannot separate under the same roof, not even during this pandemic.

Divorce is the legal action that legally dissolves your marriage. Other stuff like your property, money, and children are separate legal matters.

  1. Who should move out?

Short answer: It depends. It depends on if you have children, if you want to keep your house long-term, if there’s domestic violence involved and more. While separation doesn’t begin until you establish separate residences, you shouldn’t rush to move out until you have spoken with your divorce lawyer.

  1. What will happen to my children?

Custody of minor children is based on the “best interests” of the children. It’s going to vary from family to family and will include anything and everything related to your kids, you, and your spouse.

When deciding custody matters, there are two types of child custody — physical custody and legal custody.

Physical custody has to do with where the kids sleep at night, and often this is shared in some way. Legal custody involves who will make the major decisions for the children for things like health, education and religion. Generally speaking, legal custody is not shared as there has to be one decision maker in the end. Parents can agree to discuss issues and return to a mediator if they need help coming to agreement. I also sometimes see parents split up which areas they have legal custody over. Mom might be in charge of health and religion, while Dad makes the education decisions.

  1. How is child support determined?

In North Carolina, most cases will be based on our North Carolina Child Support Guidelines, which can be found on the N.C. Department of Health and Human Services website. This “child support calculator” adds up each parent’s gross income, tabulates overnights with each parent and balances payments for health insurance for the children, costs for work-related childcare and costs for extraordinary expenses, such as those related to special educational and medical needs, between the parents.

Child support within families with combined incomes of $360,000 or more will be subject to individualized child support calculations by considering the parents’ expenses, the children’s expenses and parents’ incomes.

  1. What will my spouse and I be dividing in our divorce?

In your divorce, you will divide all marital property, which is property you have accumulated in your marriage and up to your date of separation. It won’t include separate property, such as a gift or inheritance that was given exclusively to you during the marriage or property received before you were married. For many people, when they got married, they didn’t have much, and most of their stuff will be marital property and divided up.

  1. Will I have to go to court?

It depends. You might have to file something, but you could settle out of court. If you and your spouse agree to a collaborative divorce, you greatly increase your odds of avoiding going to court, and you will save money, too.

  1. What does “filing” something mean?

Filing something means you are formally asking for the court to assist you with certain matters – property, alimony, child support, child custody and later divorce – that you spell out in that filing.

  1. I wasn’t working before. Should I get a job now?

Stay the course with whatever you are doing work-wise until you have a plan – for childcare, child support and custody. Talk with your attorney before making big changes.

  1. My friend went through a divorce and says I should do [fill in the blank]. Should I?

Your case and your circumstances are your own. You can’t necessarily do what your friend did, even if you have the same legal representation. Focus on your own situation and desired outcome.

  1. What should I tell my divorce attorney?

Anything and everything you think has the potential to have a positive or negative effect on your case.