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North Carolina Marital Settlement (Divorce) Agreement

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North Carolina Marital Settlement (Divorce) Agreement

Updated August 29, 2023

A North Carolina marital settlement agreement is a legal contract entered into by a married couple who intend to separate and wish to set forth the terms and conditions of their separation or divorce. This agreement can be negotiated by the spouses alone or they may use a mediator or attorneys to aid in the execution of the document. A settlement agreement can be done at any point before or during the spouses’ separation period. In order to obtain a divorce in North Carolina, spouses are required to be separated for one (1) year before filing an action. A settlement agreement is not technically a requirement of filing for divorce, but important post-divorce matters will not be covered in the court proceedings of an uncontested (no-fault) divorce. Therefore, it’s important to have this agreement in place before the divorce proceedings so the couple can determine what sort of spousal support will be awarded, who will have custody of the children, how child support will be calculated, and how property, assets, debts, and liabilities will be divided.

Table of Contents

Divorce Laws

Statutes – Chapter 50 (Divorce and Alimony)

Alimony (§ 50-16.3A(b)) – The court will consider a number of factors when determining a fair amount of alimony that one spouse has to pay the other after they divorce, including the following:

  • Marital misconduct
  • Relative earnings and earning capacities
  • Age and health (mental and physical)
  • Amount and sources of income, earned and unearned
  • Duration of the marriage
  • Contribution to education, training, or increased earning power from one spouse to the other
  • Custody of a child affecting earning power, expenses, and financial obligations
  • Standard of living established during marriage
  • Relative education of the spouses and time required for spouse seeking alimony to educate or train for employment
  • Assets, liabilities, and debt service requirements
  • Property brought to the marriage
  • Contribution as a homemaker
  • Relative needs of the spouses
  • Tax ramifications of alimony
  • Any other economic factor deemed just and property by the court

Alimony CalculatorRosen Law Firm | North Carolina Divorce

Child Support (§ 50-13.4) – When determining the appropriate support a child shall receive, the court will use the North Carolina Child Support Guidelines. However, the court may deviate from the guidelines if evidence provided by the parents suggests a more appropriate and fair alternative.

Child Support CalculatorRosen Law Firm | North Carolina Divorce

Division of Property (§ 50-20) – North Carolina is one of the forty-one (41) states that recognize the equitable distribution law. The court will determine the value of all marital and divisible property, excluding separate property that was acquired before the marriage or as a gift/bequeathment. Next, they will divide the properties equitably between the spouses, while considering a number of other factors as to make the division completely fair.

Grounds for Divorce (§ 50-5.1 and § 50-6) – There are only two (2) valid grounds for divorce (referred to as “absolute divorce” in NC statutes) in North Carolina: separation for one (1) year, and incurable insanity of a spouse while being separated from cohabitation for three (3) consecutive years. Divorce from bed and board, which is not a dissolution of the marriage but a legal separation, can be achieved on any of the following grounds (§ 50-7):

  • Abandonment
  • Maliciously throwing someone out of the house
  • Cruel or barbarous treatment endangering life
  • Rendering living conditions intolerable and/or burdensome
  • Excessive alcohol or drug use
  • Adultery

Interim Support (§ 50-16.2A) – Interim support, referred to as a postseparation support in North Carolina law, can be requested by either party in order to meet certain financial needs during the divorce action proceedings in court.

Residency (§ 50-8) – Either spouse has to live in the state of North Carolina for at least six (6) months before a divorce action can be filed.

Separation (§ 50-6) – In order to receive a “no-fault” divorce, other than on the grounds of insanity, the spouses have to be separated and living apart for at least one (1) year. Legal separation, however, is called a “divorce from bed and board,” which is a fault-based action (§ 50-7). This action doesn’t dissolve the marriage but enables the petitioning spouse to obtain certain rights, such as custody and alimony.

Divorce Forms

Uncontested Divorce with No Children:

Uncontested Divorce With Children:

How to File for Divorce in North Carolina (5 steps)

  1. Separation
  2. Complaint
  3. Serving the Defendant
  4. Court Date
  5. Judgment

1. Separation

husband packing belongings and moving out of joint homeTo file an uncontested divorce, also known as a “no-fault” divorce, the spouses must be separated for one (1) full year before filing the action. This means living in separate dwellings with no intention of reconciliation. Filing for an absolute divorce can be done without legal counsel, however, certain issues need to be resolved before filing an action with the court. For example, an absolute divorce does not cover interim spousal support (post-separation support), spousal support (alimony), child support, child custody, property division, or any other matters relating to the rights and obligations of each spouse. These issues can be resolved by the spouses, with or without the help of attorneys or a mediator, by executing a Marital Settlement Agreement. A settlement agreement, which is often used interchangeably with the term “separation agreement,” can be implemented at any point during the period of separation. By signing this agreement, the spouses are not legally separated, but the provisions created in the agreement are legally binding.

2. Complaint

If the spouses have their affairs in order (i.e., support, custody, property distribution, etc.), one of them can file a complaint with their local district court (specifically family court division) to initiate the proceedings for an absolute divorce. The spouse that files the complaint becomes the “plaintiff” and the other becomes the “defendant,” for the purposes of the court proceedings. At this point in time, if the plaintiff wishes to resume their former name, they may request this desire in Section 10 of the Complaint form. Changing one’s name through the Complaint form means the spouse can avoid additional charges in the future. (Note: if the defendant wishes to resume their former name, they can make this request when filing their answer in Step 3.) In addition to the complaint form, the plaintiff must download and complete the following forms (only the required fields, the court clerk or judge will fill in the remaining fields):

The complaint, civil summons, cover sheet, and the servicemembers affidavit must be filed with the family court division of the district court in the county where one of the spouses resides. There is a $225 filing fee, subject to change.

3. Serving the Defendant

The defendant must receive a copy of the complaint and the summons by one of the following methods of service:

  • Hire local sheriff’s office – a deputy will serve the defendant for a fee of $30.
  • Certified mail – mail forms to defendant and sign the Affidavit of Service by Mail in front of a notary public. This form must be filed with the court.
  • Accept service – defendant must complete an acceptance of service in front of a notary public. This form must be filed with the court.
  • Publication in local newspaper.

Once they receive the forms, the defendant has thirty (30) days to file an answer. Generally, in an uncontested divorce, the defendant will not file an answer or will file a waiver form, waiving the 30-day period.

4. Court Date

calendar showing a court date It is the responsibility of the plaintiff to contact the courthouse and inquire about their court date set by the family court case coordinators. Once a court date is obtained, the plaintiff can complete the Notice of Hearing and Judgment of Divorce and file them with the court clerk. A copy of these documents must be sent to the defendant.

5. Judgment

A judge deliberating in a final divorce hearing, while a lawyer and client chat quietly.Both parties must appear before the judge at the appointed time on the date set by the court case coordinators. If all documents have been filed properly, the judge will hear testimony from both parties and make their final judgment. The judge will sign the Judgment of Absolute Divorce that was prepared by the plaintiff. The court clerk will provide a Certificate of Absolute Divorce, which must be completed by the plaintiff and will be sent by the court to the North Carolina Center for Health Statistics. This concludes the divorce proceedings and the dissolution of the marriage is complete.