Same-sex marriages became legal in North Carolina on October 10, 2014. Later, in June 2015, the Supreme Court ruling confirmed the right to same-sex marriage throughout the country. Consequently, courts in North Carolina had to recognize any gay divorce and grant it under the same conditions as for heterosexual couples.
The procedure of marriage dissolution is regulated by the North Carolina General Statutes, which comprise the requirements for same-sex divorce in North Carolina, as well as other critical information on property division, child custody and support, and other issues.
Notably, a common-law marriage is not legally recognized in NC, so only a person married to a same-sex partner in an official wedding ceremony can get a divorce in North Carolina.
Same-sex divorce online
For gay couples who want to get a divorce without a lawyer, there is a quick and easy option — divorce over the internet. However, some conditions must be met. First, one of the spouses must satisfy the residency requirements. Second, only spouses with an uncontested divorce can file for same-sex divorce in North Carolina with the help of online services. As a rule, specialized websites provide their clients with printable documents that can be submitted to the court.
A do-it-yourself divorce is an inexpensive alternative to traditional ways of marriage dissolution. The decision on how to file same-sex divorce in North Carolina affects the overall cost of action. Obviously, if you exclude a lawyer from the process, the expenses will be much lower. For example, northcarolinaonlinedivorce.com offers to prepare the necessary documentation for only $139. Compared to hourly attorney fees, such a price is much more affordable for most US families.
Same-sex divorce papers in North Carolina
The divorce process for same-sex couples in North Carolina cannot start until same-sex divorce papers are filed with the court. The package of documents depends on local rules and the circumstance of each case, but some of the forms are standard statewide. Primary same-sex divorce forms in North Carolina include a Complaint for Absolute Divorce, Civil Summons, and Domestic Civil Action Cover Sheet.
Same-sex divorce paperwork in North Carolina can be prepared either by a lawyer or obtained by yourself. After the documentation is submitted to the court, and copies are served to the respondent (the other spouse), divorce proceedings can begin. They may include a court hearing where a judge will review the case and make a final decision.
Valid grounds for same-sex divorce in North Carolina
To file for divorce in North Carolina, a person must indicate a cause for the same-sex marriage dissolution. Since North Carolina is a no-fault state, it is not necessary to provide proof for any fault-based grounds. A couple filing for divorce has two options:
Separate living for one year (North Carolina General Statutes § 50-6). In order to qualify for this type, such circumstances must be permanent (without cohabitation) and have existed for six months before action.
Separate living for three years because of the incurable insanity of one of the parties (North Carolina General Statutes § 50-5.1).
Custody of the Child
If a couple has minor children, they can get a same-sex divorce in North Carolina when such issues as child custody and support are resolved. If the parents are in an amicable agreement about visitation rights and parenting responsibilities, a judge will consider their terms on the condition that they comply with the best interests of a child. The court may refer the spouses to a parenting class before the decision of custody can be made.
The court will not favor a parent because he or she is a natural parent, and the other is adoptive. But both have to be legal parents to be awarded custody. When determining custody, a judge will review such factors as the existing relationship between all parties, instances of domestic violence, or whether one of the parents was charged with child abuse (North Carolina General Statutes § 50-13.2).
Payments to support a minor child are calculated according to the state guidelines based on the Income Shares Model. The amount must satisfy the needs of child care, health, and education. However, if the application of the guidelines will lead to an unjust or inappropriate sum, a judge has a right to deviate from using them (North Carolina General Statutes § 50-13.4).
The payments are continued until:
- the child is emancipated;
- the child reaches 18 years of age;
- the child completes secondary school or turns 20 while still in school.
A child support order can be modified at any time. To apply for a modification, one of the parties must show that the circumstances have changed in regards to their ability to pay or the needs of the child.
Either spouse can ask for alimony. The supporting spouse can pay alimony to a dependent spouse either periodically or in a lump sum. A judge determines the amount and duration of payments based on several important factors, including (North Carolina General Statutes, §50-16.3A):
- living standard during the marriage;
- the length of marriage;
- the fact of marital misconduct;
- earning capacities of the spouses;
- age and health of the parties;
- the income of both spouses, including wages, dividends, and benefits;
- contribution of one spouse to the education of another;
- assets, liabilities, and debts of the spouses;
- tax ramifications;
- other relative factors.
The order for spousal support can be modified upon request by either spouse by showing substantial financial changes. If the receiving spouse remarries or begins cohabiting with another person, the payments of alimony will terminate.
North Carolina is an equitable property distribution state, which means that judges divide assets and debts between spouses equally based on net income. However, they may decide that such distribution is unfair. Then how is property divided in this case? The court will consider the following factors to divide assets equitably:
- the income and liabilities of each party at the time of division;
- financial obligation from a previous marriage;
- duration of the marriage;
- property of each spouse;
- needs, age, and health of the parties;
- the need for a custodial parent to own the residence;
- contribution of one of the spouses to the career of the other;
- the tax consequences of distribution for each party;
- the acts of improving the property during a separation or its dissipation;
- and other factors (North Carolina General Statutes, § 50-20 (c))
Divorce laws about property division in North Carolina are the same for same-sex unions and heterosexual marriages. Everything that spouses acquired in marriage is called marital property, which is subject to division. Separate property is usually returned to the person who owned it before the wedding or received it as a gift, demise, or inheritance.
All contested family law cases concerning custody of children and visitation rights are referred to mediation. This is an alternative way to resolve disputes between the spouses. Such proceedings are strictly confidential.
Usually, a professional trained in mediation techniques, known as a mediator, guides the spouses through the process of negotiation. The mediator cannot give any legal advice. The agreement reached during mediation sessions is submitted to the court and incorporated into the final judgment. If some issues still remain unresolved, the judge will decide them at his or her own discretion during the divorce trial.
Filing fees for same-sex divorce in North Carolina
When a couple or one of the spouses decides to file for same-sex divorce in North Carolina, they have to pay a court fee. The cost for the submission of the necessary documents is currently $225.00. Other expenses depend on each case and its complexity. For example, the decision of how to serve the papers on the defendant may have varying costs. If you ask a sheriff to deliver them, you will have to pay $30. But since the person serving your spouse can be any friend or relative not involved in the case who is at least 18 years old, the cost could also be lower or even free.
For any person who cannot afford to pay the court fees, there is an option to ask for the fees to be waiving. To do so, you have to complete the affidavit of indigency and provide supporting financial information along with the initial filing.
How long will it take
The standard waiting period after the other party receives the papers is 30 days. Only then will a judge review the case. The length of divorce process depends on the circumstances of the case. For example, couples with children will have to go to mediation before the court hearing.
A divorce for same-sex couples in North Carolina where there are no contested issues between the spouses is usually fast. It takes approximately two to three months. Contested cases can take several years.
Another complication that can effect the length of the process is when a person married to a same-sex partner wants to get a divorce in North Carolina and the spouse is out of state. If the whereabouts of the spouse is unknown, it may take extra time to conduct a thorough search and track them down.