Who Files for Divorce?
Filing for divorce in North Carolina is unique in many ways and differs substantially from other types of legal proceedings.
Divorce can be complicated.
Terminating a marriage ultimately culminates in civil court proceeding in Charlotte (and throughout all of NC), with the filing of a lawsuit known as a “Complaint for Divorce.”
Mecklenburg County divorce proceedings are subject to local rules, procedures, and protocols that may vary substantially from other neighboring jurisdictions.
Unlike many other types of legal disputes involving car accidents, negligence, breach of contract, etc., obtaining a divorce requires a legal “filing” or complaint.
Even if the parties agree 100% about Equitable Distribution, Custody, and Support, a lawsuit is required, as is an Order granting the divorce, by a District Court Judge.
That differs from legal claims involving an accident or personal injury matter, where the parties may agree to settle without filing suit.
A District Court Judge, not a judge in Superior Court or jury, enters a Decree of Divorce after confirming certain condition precedents are met.Who is the Plaintiff is a Divorce?
Ordinarily, in civil court, the Plaintiff is the person or party claiming they were harmed or wronged.
The Plaintiff may file a lawsuit, alleging things like negligence or breach of contract or even Alienation of Affections or Criminal Conversation, as the case may be.
Divorce is different.
The plaintiff under the NC divorce laws is merely the person who files first.
While that party may indeed allege wrongdoing or legal bases for seeking a divorce that involve violations of the criminal laws (assault, battery, acts of domestic violence) and/or allegations of marital unfaithfulness, mental anguish, etc., North Carolina is generally deemed a “no fault divorce” state.
As such, fault need not necessarily be proven in every divorce.
There may be times when wrongdoing is alleged as it pertains to setting forth certain legal claims that necessitate such proof as a matter of law or when the necessity for an expedited proceeding is at issue.
In Charlotte Family Court, divorce lawyers and judges may instead refer to the “Plaintiff” or the “Defendant” as “husband” or “wife” or “mother of the children” or “father of the children.”When Should I File for Divorce?
Waiting to file for divorce is not unusual.
There are several good reasons to wait to file, including the fact that a divorce decree ordinarily may not be entered until the Court is satisfied the mandatory period of separation (1 year) has been met.
It’s important to understand there are legal exceptions to the one-year period of separation.
The vast majority of legal matters involving divorce in North Carolina and obtaining a divorce in Charlotte are subject to the period of legal separation.
Indeed, filings requesting a divorce in Charlotte prior to expiration of 12 months are rare and generally disfavored as a practical matter.
** If you have questions regarding the applicability of obtaining a divorce from bed and board or due to extreme mental issues or dire circumstances, consult a legal professional. The NC divorce laws pertaining to such matters are notoriously complicated and can be difficult to navigate. Each case and fact-pattern are unique. The content provided herein is NOT legal advice. Talk to a Charlotte divorce lawyer immediately.Should I Wait to File for Divorce?
If you are separated from your spouse and there is a temporary arrangement involving PSS – Post Separation Support and/or have a Separation Agreement “SA” that works for you, there may be no need to rush filing for divorce.
You may wish to wait until your spouse files for divorce.
There are rules regarding the timing that must expire prior to filing for divorce. The 12-month period of legal separation is a good example of that.
At the same time, you are not required to file for the divorce the first day that is possible.
A party may file for divorce substantially after the one-year period of separation.
There are also times when the parties may try to reconcile, possibly “restarting the clock” on the period of legal separation.
Again, the process of obtaining a divorce can be a bit difficult to understand.Can I Immediately File for Divorce?
A lawsuit or Complaint for Divorce may be filed immediately, and in instances where litigation over custody of children, support, alimony, and visitation are likely to be contested, immediate filing may be appropriate to expedite the timely disposition of certain legal and factual issues.
Put simply, if the parties dispute who gets the children, how the marital estate assets are to be divided, who has custody and visitation rights, filing a complaint setting for the projected issues may be both necessary and proper.
You and your case are unique.
Your individual needs and concerns are important. They may dictate the manner (and timing) of filing a complaint for divorce in Charlotte.