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divorce

Divorce

In NC, marital fault is not required to obtain a divorce. In most circumstances, the parties must be separated for at least one year before either party may file a lawsuit for a divorce. A divorce severs the legal relationship between two married people, and impacts many legal rights and responsibilities. There is no common law marriage in our state, although North Carolina will recognize one if it was validly performed in a state that does permit common law marriage. A divorce is a ruling on the legal relationship between you and your spouse. A divorce makes a critical difference in many important situations, such as health insurance, the way you file tax returns, and retirement and social security benefits, to name a few.

A divorce also controls when you have the right to file claims for alimony and marital property division, and your rights to jointly owned property, including survivor rights, just to name a few. If a married person changed his or her name, the divorce decree can restore the use of the original birth name or (under some circumstances) a former last name to that person. Alternatively, a person may file court proceedings requesting the use of the original or former name after the divorce should he or she later decide to do so.  When someone changes names, he or she should report the change to the proper government entities, such as the Social Security Administration and the NC Division of Motor Vehicles. If a lawsuit for a divorce has been filed, there are strict deadlines for filing responses to the lawsuit.  Certain marital rights are permanently lost if claims are not filed by the time a judge enters a divorce decree.  ALWAYS consult with an attorney as soon as possible to discuss your rights in the event a divorce lawsuit has been filed.

Divorce Based On Insanity

If your spouse has “incurable insanity” the only way to divorce in our state is for the parties to be separated for a minimum of three years. To be “incurably insane,” the spouse is “so mentally impaired that she does not understand what she is engaged in doing and the nature and consequences of her acts.” This definition is stated by the NC Court of Appeals in Scott v. Scott, 106 NC App. 606 (1992) aff’d, 336 NC 284 (1994). If the parties are divorced after the three year waiting period, “the court shall require” the sane spouse to “provide for the care and maintenance” of the insane spouse for life if the insane spouse “has insufficient income and property” to support himself or herself. If anyone who is incompetent is served with a lawsuit, the person’s legal guardian is responsible and if there is not one, the court will generally expect one to be named which requires another type of lawsuit called an incompetency proceeding.

 

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