Understanding Divorce Law and Procedure

To most people, including lawyers, the law appears very complicated and confusing.  Fortunately, many areas of the law can be broken down into simple and logical steps.  Divorce is one of those areas.  Law and the legal system are often compared to games, and just like games, it is important to know the players:

The Players

The judge. He or she has the power to decide whether you can get divorced, how your property will be divided, which of you will get custody of the children and how much the other will pay for child support.  The judge is the last person you want to make angry with you.  In general, judges have large caseloads and like it best when your case can be concluded quickly and without hassle.  This means that the more you and your spouse agree upon, and the more complete your paperwork is, the better the judge will like it.  Most likely, your only direct contact with the judge will be at the final divorce hearing, which may last as little as five minutes.

The judge’s secretary.   The judge’s secretary sets the hearings for the judge, and can frequently answer many of your questions about the procedure and what the judge would like or require.  Once again, you don’t want to make an enemy of the secretary.  This means that you don’t call him or her often, and don’t ask too many questions.  A few questions are okay, and you may want to start off saying that you just want to make sure you have everything in order for the judge.  You’ll get much farther by being nice than by arguing.

The court clerk.   Where the secretary usually only works for one judge, the court clerk handles the files for all of the judges.  The clerk’s office is the central place where all of the court files are kept.  The clerk files your court papers and keeps the official records of your divorce.  Most people who work in the clerk’s office are friendly and helpful.  While they can’t give you legal advice (such as telling you what to say in your court papers), they can help explain the system and procedure (such as telling you what papers must be filed).  The clerk has the power to accept or reject your papers, so you don’t want to anger the clerk either.  If the clerk tells you to change something in your papers, just change it.  Don’t argue or complain.

Lawyers.  Lawyers serves as guides through the legal system.  They try to guide their own client, while trying to confuse, manipulate, or out-maneuver their opponent.  In dealing with your spouse’s lawyer (if he or she has one) try to be polite.  You won’t get anywhere by being antagonistic.  Generally, the lawyer is just doing his or her job to get the best situation for his or her client.  Some lawyers are truly nasty people.  These lawyers simply can’t be reasoned with, and you shouldn’t try.  If your spouse gets one of these lawyers, it is a good idea for you to get a lawyer also.


The Law

The law relating to divorce, as well as to any other area of the law, comes from two sources.  The first source is the General Statutes of North Carolina, which are the laws passed by the North Carolina legislature.  The other source of law is the past decisions of the North Carolina courts.  The law is really very simple in most divorce cases.  You will need to show the following three things:

1.  That you have been separated for one year.  (This is done simply by affirming this fact, which means that for one year you lived in one place and your spouse lived in another, in your divorce pleading and at the divorce hearing.)

2. If applicable, how your property should be divided between you and your spouse.

3. If applicable, who should have custody of your children and how they should be supported.

The Procedure

The basic uncontested divorce process may be viewed as five-step process:

1.  File your court papers asking the judge to grant you a divorce (which may include dividing your property and deciding how the children will be taken care of.)

2.  Notify your spouse that you are filing for divorce.

3. Schedule a hearing a date.

4. Notify your spouse of the hearing date.

5.  Attend the divorce hearing, and have the judge sign an order granting the divorce.

Photo Credit: Visual Hunt





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