Frequently Asked Questions in Divorce Consultations (Part I)

Do we really have to live apart for a year before we can get a divorce, or can we just sleep in separate bedrooms?
Yes, in both North Carolina and South Carolina to file for a no-fault divorce you must live separate and apart in separate homes for one year and one day before you can file for divorce. Staying in separate bedrooms under the same roof is not sufficient in either state to qualify as a “separation.” Filing and receiving the divorce decree is the final step in the separation and divorce process, but in the year-long interim period, you can address all of the other issues related to the divorce such as child custody, child support, equitable distribution, and spousal support/alimony.

What if my spouse doesn’t want to get divorced?
Your spouse cannot deny you a divorce and you do not need your spouse’s “permission” to file for a divorce. If you meet the requirements to file for divorce, you can proceed whether your spouse wants to be divorced or not. An uncooperative spouse does not need to agree to the divorce for it to be granted by a judge; however, your spouse must be served with proper notice that you filed for divorce. After service, if your spouse ignores the lawsuit, your divorce will still typically be granted in the end. Bear in mind that all marital financial issues (i.e., equitable distribution and spousal support/alimony) must be resolved prior to the issuance of a final divorce decree.  

​What if my spouse won’t leave the house to start the separation period?
If your spouse refuses to leave the shared marital residence and you want to keep things amicable and low-cost, you may have to be the spouse who initiates the separation by leaving temporarily. There are sometimes other legal avenues to attempt to remove your spouse from the marital residence, but the other legal options can be expensive, time-consuming, and not conducive to reaching a settlement with your spouse in the long term. As a side note: you cannot just change the locks after your spouse leaves for work one day and not permit your spouse to reenter the home unless you have filed for and been granted a domestic violence protective order. Generally, locking your spouse out is not the best way to initiate an amicable divorce.

Do we have to go to mediation?
No, not necessarily. Oftentimes couples can agree upon how to divide their marital estate, what their parenting time schedule will be, set a child support obligation, and determine spousal support/alimony on their own or with the assistance of attorney(s) prior to proceeding to mediation.
If a couple disagrees upon any of the above-mentioned issues and cannot find a resolution, the couple may benefit from participating in mediation to work out the details of their divorce. A mediator is a neutral third party who is usually an attorney or a retired judge. Mediators assist the parties in working through their disagreements and finding a workable and satisfactory overall resolution. Couples can participate in mediation without attorney representation, but in North Carolina, please note that a mediator cannot draft a separation agreement. If you come to an agreement in mediation in North Carolina without attorneys, you will have to take your list of agreed-upon points to a separate attorney to draft the separation agreement. If you are represented by attorneys during the mediation and you are able to resolve your case, you and your spouse would sign a separation agreement drafted by one of your attorneys. In South Carolina, a mediator is permitted to draft a mediated settlement agreement for parties who are not represented by attorneys, which can save a ton of money for spouses who cannot afford two attorneys.

How long does a divorce take?
In North Carolina: You have to wait for one year and one day after separation to file for divorce. Your spouse has 30 days after service to respond to the divorce lawsuit. If you and your spouse have reached a resolution outside of court, finalizing the divorce will be a matter of getting on the court’s docket to have a judge declare you legally divorced. If your county has a full docket, it can take an additional 3+ months to finalize the divorce after filing.
In South Carolina: For a no-fault divorce, if you have been separated for one year and one day and have reached a resolution on all marital issues, finalizing the divorce will be a matter of getting on the court’s docket to have a judge declare you legally divorced. If your county has a full docket, it can take an additional 2+ months to finalize the divorce after filing. If you and your spouse have reached a resolution outside of court, you are filing for a fault-based ground for divorce (adultery, habitual drunkenness or drug use, or physical cruelty), and your spouse does not contest the divorce filing, you may be able to obtain a divorce 90 days after the date of filing.

Can we file the divorce paperwork ourselves?
Yes, you can file the divorce lawsuit without a lawyer, but divorce paperwork is intensive and has very specific legal requirements. Navigating the divorce process is complex and divorce paperwork is best completed by a licensed attorney who has the expertise to properly handle your divorce.

​Do I have to go to court?
In North Carolina: No, not usually. If you can reach a resolution on all your other marital issues outside of court (i.e., child support, child custody, equitable distribution, and spousal support/alimony), all you have to do is file the divorce lawsuit then proceed accordingly with your county’s respective requirements to finalize your divorce. You do not typically have to be present in court when the judge signs the Judgment of Divorce.
In South Carolina: Yes, even if you and your spouse have reached a resolution on all of your other issues outside of court (i.e., child support, child custody, equitable distribution, and spousal support/alimony), you will have to appear at a Final Divorce Hearing in front of a judge to get the Decree of Divorce entered, unless you and your spouse (via your attorneys) submit affidavits to the court in lieu of a hearing.  

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