Pro Se Plus Clinic: Absolute Divorce

(Buncombe County)
A project of the Legal Aid of North Carolina - Asheville Office

[Note: The materials contained on this website are for information and educational purposes only and do not constitute legal advice.  Please contact your Legal Aid of North Carolina (LANC) office or a private attorney if you need to speak to an attorney regarding your particular situation.  Please see our disclaimer.]

This document was developed by the LANC-Asheville Office for low-income residents of Buncombe County who participate in the Pro Se Plus Divorce Clinic. The document provides a summary of divorce law in North Carolina and instructions for filing the necessary forms in Buncombe County District Court for clinic participants. To determine eligibility for the clinic and to receive forms for divorce, please contact the LANC-Asheville Office (during the designated intake hours as listed on the intake section of that webpage). See the "Advice & Guidance Agreement."

CONTENTS:

* Introduction...describes the Pro Se Plus Clinic.
* Section I...provides screening criteria for participation in the
                  Pro Se Plus Clinic.
* Section II...discusses specific factors why you may not want to
                participate in the Pro Se Plus Clinic and instead seek the
                assistance of a private attorney.
* Section III...states the Pro Se Plus Clinic’s procedure and schedule.
* Section IV...provides an overview of North Carolina law on
                divorce.
* Section V...provides an overview of the necessary filing forms.
* Section VI...is a more detailed overview of the judicial process
                when filing in Buncombe County District Court.
* Section VII...discusses the Judgment of Absolute Divorce.
* Section VIII...discusses Courtroom decorum:
                Proper and respectful behavior
* Glossary of Legal Terms...a list of legal terms used
* Advice and Guidance Agreement...form that must be signed in order
                to participant in the LANC-Asheville Office's Pro Se Plus
                Absolute Divorce Clinic.

Introduction, The Pro Se Plus Clinic

The Pro Se Plus Clinic (of the LANC-Asheville Office) is designed to offer you a limited scope of legal services consisting of legal advice and guidance on how to file your own divorce and represent yourself in court.

This manual is designed to help you successfully complete LANC-Asheville Office's Pro Se Plus Absolute Divorce Clinic.  It is formatted to provide you with a summary of North Carolina law on divorce, as well as directions and instructions for filing the necessary forms in Buncombe County District Court.

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SECTION I:  Case Acceptance Criteria

To participate in Legal Aid’s Pro Se Plus Clinic (PSPC) you will be screened for financial eligibility and your appropriateness as a pro se litigant.  Acceptance into the Pro Se Plus Clinic is limited to persons who qualify under PSPC’s case acceptance criteria. This criterion is absolute and not negotiable:

1. You must financially qualify for case acceptance under general
    Legal Aid of North Carolina case acceptance criteria.
2. You must be a resident of Buncombe County.
3. Prior to acceptance, you must have been a resident of North
    Carolina for six (6) months.
4. Prior to acceptance into the PSPC, you must have been separated
    from your spouse for one calendar year without resuming a marital
    relationship.
5. You must not have child custody issues with your spouse.
6. You must not have real or personal property issues or alimony
    issues with your spouse.

See the "Advise & Guidance Agreement" form below

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SECTION II:  Three reasons to consider NOT proceeding as a
                        "pro se" litigant.

1.  The presence of domestic violence in the marital relationship
If you have been the victim of physical abuse during your marriage, you may not want to represent yourself in an absolute divorce case.  In abusive relationships, sometimes the act of filing the Complaint for an absolute divorce will anger and enrage the abusive spouse.  Most abusive spouses are very controlling. Your spouse may think you are trying to challenge his or her authority.  If your spouse has hurt you in the past and you are afraid of your spouse now, you may want to reconsider handling your case yourself and seek representation by a private attorney.

Ultimately, the choice to represent yourself is your own decision. Some factors you may want to consider when making your decision include:

  * Do I think my spouse will become very angry when I file this and
    try to do something to get back at me?
  * Will I feel safe knowing my spouse has my address since it appears
    on the Summons and Complaint?
  * Do I have a safe place to stay after I file for divorce and while I am
    waiting for the Sheriff to serve my spouse with the absolute
    divorce papers?
  * Have I had to get a restraining order against my spouse in the past?
  * Has my spouse followed the terms of any restraining order?

Legal Aid of NC and the Pro Se Plus Clinic want all participants to be as safe as possible.  You may want to rent a U.S. Post Office Box or commercial mail drop rather than using a residential/street address if you do not want your spouse to know where you live.  For your convenience and safety, we can also give you information about the local domestic violence shelter where you can call for counseling.

2.  Equitable Distribution of Marital Property
Once an Absolute Divorce Judgment has been granted, neither you nor your ex-spouse can ask the court for a division of marital property.  To preserve a claim to marital property, you must file with the Clerk of Court a claim of Equitable Distribution of Marital Property prior to receiving your Absolute Divorce Judgment.

Marital property consists of any real or personal property acquired by either spouse during the course of the marriage, and before the spouses’ separation. Examples of marital property include the marital home, land, vehicles, furniture, retirement plans (401K), and marital debt (e.g., credit cards and medical bills if incurred for the joint benefit of both spouses).

If you have marital property you wish to retain ownership of, you will need to file for Equitable Distribution of the marital property at the same time as filing for the absolute divorce.

The Pro Se Plus Clinic will not assist you in filing an Equitable Distribution of Marital Property claim. To best protect and retain any real or personal property, you should not participate in the PSPC. You should seek the assistance of a private attorney in filing for your absolute divorce and equitable distribution of marital property claims.

3.  Alimony and Post-Separation Support
Alimony and post-separation support are forms of spousal support. Alimony is money paid to a spouse or ex-spouse. Post-separation support is money paid to a spouse for a specific period of time, generally temporary, until the court orders or denies an award of alimony. You may be eligible for alimony or post-separation support if:

You are substantially dependent upon your spouse for your maintenance and support, OR you are substantially in need of maintenance and support from your spouse.

The Court will consider many factors to determine whether or not you are eligible for alimony or post-separation support.  Some of those factors include: marital misconduct, earnings and earning capacity of each spouse, how long you have been married, contributions each of you have made to the marriage and your standard of living, your ages and physical and mental conditions, property that you own and the needs of each spouse. There are many other factors that the court may consider.

Once an Absolute Divorce Judgment has been granted, neither you nor your ex-spouse can ask the court for alimony or post-separation support. To preserve a claim alimony or post-separation support, you must file with the Clerk of Court a complaint for alimony or post-separation support prior to receiving your Absolute Divorce Judgment.

The Pro Se Plus Clinic will not assist you in filing a complaint for alimony or post-separation support. To best protect your rights to alimony if you believe you might be eligible, you should not participate in the PSPC. You should seek the assistance of a private attorney in filing for your absolute divorce and alimony or post-separation support claims.

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SECTION III:  Procedure and Schedule

The Pro Se Plus Clinic will be conducted in two evening sessions. The instructors for the sessions will be attorneys and paralegals. The agenda for the first session consist of a discussion of the Clinic’s purpose and procedure; an overview of North Carolina divorce law; an in-depth discussion of the necessary filing forms, and Buncombe County District Court’s judicial process and procedure.

After the first session, you will complete all the necessary filing forms and bring them to the second session. During the second session, an attorney will review all completed filing forms and instruct you on how to file the forms with the Buncombe County Clerk of Court and the Buncombe County Sheriff’s Department’s Civil Process office.

After all the necessary forms have been filed and you have obtained Service of Process on the Defendant, the PSPC Coordinator will schedule a court date for the absolute divorce hearing.

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SECTION IV:  North Carolina Divorce Law

In regard to divorce law, North Carolina is a "no fault" state. This means, in asking the court for a divorce, you do not have to prove the other spouse has done something wrong (e.g., adultery, abandonment, or excessive use of alcohol or drugs) to be eligible for a divorce.

Basically, there are only two (2) requirements for getting a divorce in North Carolina:

  • 1) The Plaintiff must have lived in North Carolina for six (6)
        months prior tofiling the Complaint for Absolute Divorce; and
  • 2) The Plaintiff and Defendant (wife and husband) must have lived
        separate and apart (in different residences) from each other for
        one calendar year.

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SECTION V:  Buncombe County (N.C.) Filing Forms

Upon filing the necessary documents for an Absolute Divorce, you will become a "Plaintiff" and your spouse will become the "Defendant."

When completing the filing documents, you must either type or use black ink.

Domestic Civil Action Cover Sheet
All papers filed in civil actions must include a cover sheet summarizing the critical elements of the filing.  The Clerk of Superior Court shall require a party to re-file any paper which does not include the required cover sheet.

Complaint and Verification Form
The Complaint is the paperwork you file with the Clerk of Court which asks the court for an absolute divorce. The Complaint consists of statements and facts about the parties’ marriage and separation and a request that the Judge grant an absolute divorce based on the statements and facts. The Verification form is a notarized document that you sign stating that all the statements and facts in the Complaint are true to the best of your knowledge.

Civil Summons
The Civil Summons is the form which notifies the Defendant that a lawsuit has been made against him/her.  The Clerk of Court must issue the Civil Summons by signing it and noting the date and time it is issued.  The Civil Summons consists of both parties’ names and the Defendant’s residential and/or work address.  This form lets the Defendant know that he/she has thirty (30) days to respond to the Complaint by filing an Answer with the Clerk of Court.

Petition to Sue as an Indigent
The Petition to Sue as an Indigent form is used to determine your financial ability to pay court cost. This form is based on your income and, if the Clerk of Court determines you to be indigent, allows you to file the lawsuit without having to pay the court cost. This form must be notarized

Waiver & Acceptance of Service
After the Defendant has been served with the Complaint and Civil Summons, he/she may decide they do not want to contest the absolute divorce.  If so, they can complete the Waiver and Acceptance of Service form, sign the form in the presence of a notary, and return the form to you or to the court for filing. The Waiver and Acceptance of Service form tells the court that the Defendant formally receives the Complaint and Civil Summons and waives his/her right to respond and file an Answer with the court.

Notice of Hearing
After the Defendant has been served with the Complaint and Civil Summons and thirty (30) days have expired, you may request a court date for the Absolute Divorce hearing. You must send to the Defendant a Notice of Hearing attesting to the time, date, and place of the hearing. The Notice of Hearing must give the Defendant at least five (5) days notice of the court date.

Judgment of Absolute Divorce
At your court hearing, you should present the Judge with your proposed Judgment of Absolute Divorce. After the hearing, if the Judge is satisfied with the evidence presented, he/she will sign the proposed Judgment. This Judgment of Absolute Divorce would then become a Court Order. The Judgment is then file-stamped. You are to give one copy to the Clerk of Court for filing in the court file; one copy is given to the Defendant, and you retain a copy.

Certificate of Absolute Divorce
The Certificate of Absolute Divorce states the relevant information regarding the parties' marriage and separation.  The Clerk of Court signs this form after the presiding Judge signs the Absolute Divorce Judgment at the court hearing.  The Clerk of Court retains this form in the court file until sent by the Court to the North Carolina Center for Health Statistics, NC Vital Records.

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SECTION VI:  The Judicial Process

A. Buncombe County (NC) District Court
Buncombe County District Court has a required procedure which must be followed when filing for an absolute divorce.  If there is any deviation from this procedure, the Plaintiff will not be granted a court hearing.

To begin the lawsuit, you must file with the Clerk of Court:

    - Domestic Civil Action Cover Sheet
    - Complaint and Verification form
    - Civil Summons
    - Petition to Sue as an Indigent form

B. Obtain Service of Process on the Defendant
This is the procedure that provides the Defendant with a copy of the Complaint and notifies him/her that you are seeking an absolute divorce.  To accomplish proper service, the Defendant must receive the Complaint and Verification form, and the Civil Summons (service packet).  Also, the court must have evidence that the Defendant has properly received these court papers. If service on the Defendant is not done according to proper procedure, the Court will not grant a hearing.  There are two (2) common methods of service on the Defendant:

  1. If you know the Defendant’s street address for his/her home
      or work, you can accomplish service in several ways:

    a.) Personal Service by County Sheriff’s Department

      * If the Defendant lives in Buncombe County, a copy of the
        Petition to Sue as an Indigent form, Complaint and Verification
        form, and Civil Summons must be given to Civil Process (office
        in Buncombe County Courthouse).  A Buncombe County Sheriff’s
        Deputy will then personally deliver the Complaint and
        Verification form and the Civil Summons to the Defendant.

      * If the Defendant lives in another North Carolina county, you will
        need to send the service packet, along with a cover letter, to
        the Sheriff in the county where the Defendant lives and ask that
        the service packet be delivered to the Defendant.  A true copy
        of the Petition to sue as an Indigent should be included.

      * Once the Sheriff’s office has completed service on the
        Defendant, it will notify the Buncombe County Clerk of Court.
        You must contact the Clerk of Court to verify that service of
        process was achieved.

    b.) Sent to the Defendant by Certified Mail through the US Postal
         Service

      * Participant must send the service packet to the Defendant via
        Certified Mail, return receipt requested.

      * The green Return Receipt Requested card must be signed and
        dated by the Defendant or someone else, of suitable age, living
        within Defendant’s household.  The Post Office then returns this
        signed card to you.  You then file an Affidavit of Certified Mail
        accompanied with the signed card with the Clerk of Court.

 2. If you does NOT know the Defendant’s street address for
     his/her home or work, you can accomplish service of process by
     publication in a newspaper.

      * Service of Process by Publication must be done in either the
        county and state where the Defendant is believed to be located
        or, if there is no reliable information concerning the location of
        the Defendant, the county where the lawsuit is filed(Buncombe
        County).

      * Service of Process by Publication shall consist of publishing a
        Notice of Service of Process once a week for three consecutive
        weeks in a proper local newspaper.

      * The cost of the publication will be solely your responsibility.

      * You must file an affidavit with the Clerk of Court showing the
        circumstances that made publishing the notice necessary and any
         information regarding the location of the Defendant.

      * After the notice has been published and the publication bill has
        been paid, the newspaper furnishes to you an Affidavit showing
        proof of publication. This Affidavit must be filed with the Clerk
        of Court.

C. Notice of Hearing
After the Defendant has been given his/her copy of the Complaint
and thirty (30) days have expired, you must give the Defendant
proper notice of the court date.  The Notice of Hearing must give
the Defendant at least five (5) days notice of the court date.

D. Court Hearing
On the day of the court hearing, you are to go to courtroom #3 on
the 4th floor of the Buncombe County Courthouse.  The PSPC
Coordinator will go to the Clerk of Court’s office and request your
court file.  This file will be given to the Clerk of Court. 
At the beginning of the court hearing, the presiding Judge will
announce the cases to determine if all the parties are present. 
When it is time for your case to proceed, the presiding Judge will
call your name and ask if the Defendant is present.  If so, both
parties will be instructed to take a seat in front of the Judge. 
If the Defendant does not make an appearance, the Judge will
proceed without him/her.  At this time, you should offer to the
Judge your prepared Judgment of Absolute Divorce(4 copies).
You will be instructed to take the stand and will be asked to make
an oath or affirmation.  The Judge will then review the file; if
all forms are correct and filed appropriately, the Judge will
proceed with the hearing.  If not, the Judge will immediately
dismiss the lawsuit.

If the Judge proceeds with the hearing, he/she will ask you
questions relevant to your marriage and separation. If the
Defendant is present, the Judge will allow the Defendant to
ask any relevant questions.  At that time, if the Judge is
satisfied with the evidence, he/she will sign the prepared
Absolute Divorce Judgment and dissolve the parties’ marriage.

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SECTION VII:  The Judgment of "Absolute Divorce"

Immediately upon signing an Absolute Divorce Judgment, you will need to get all copies of the Absolute Divorce Judgment file-stamped in the Clerk of Courts office.  You must then give one copy of the Absolute Divorce Judgment, the Certificate of Absolute Divorce and an appropriate coversheet to the Clerk to be placed in the court file. Both parties retain a copy of the Absolute Divorce Judgment for their records.

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SECTION VIII:  Courtroom Decorum -
                             Proper and Respectful Behavior

As participants in the Pro Se Plus Clinic, you are expected to obey the proper rules of courtroom etiquette. Always remember to be respectful to the Judge and all court personnel.  Specifically, you must adhere to the following rules:

  • * Be 10-15 minutes early for your court hearing.
  • * Dress as if you were attending church or a job interview.  Do
      NOT wear jeans or t-shirts.
  • * Stand when the Judge enters the courtroom.
  • * Be quiet in the courtroom. When the Judge announces your case,
      stand and tell him/her that you are there for an absolute divorce
      hearing.
  • * After the Judge has announced all the cases, he/she will ask if
      anyone’s case has not been announced.  If your case had not been
      announced, you should stand and let the Judge call on you.  At
      that time, let the Judge know your name and that you are there
      for an absolute divorce.
  • * You should always stand when speaking to the Judge from the
      gallery or Plaintiff’s table.
  • * During your absolute divorce hearing, when the Judge is asking
      you questions, you must use clear and understandable words (for
      example, "Yes, your Honor," "No, your Honor").  Do NOT whisper
      or speak too softly; the Judge must be able to hear and
      understand what you are saying.  If you do not understand
      something that the Judge has said or asked, say so.  The Judge
      will explain any issue you do not understand.

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Glossary of Legal Terms

"Absolute Divorce"
...A Court ordered legal separation of husband and wife effectively dissolving their marriage relationship.

"Alimony"
...Money paid to a spouse or ex-spouse for his or her support.

"Defendant"
...The person against whom an absolute divorce has been filed.

"Domestic Violence"
...Any physical or emotional behavior that would qualify as grounds for a protective order.

"Equitable Distribution"
...The equal division of marital property acquired by husband and/or wife during the marriage; the marital property must have been acquired during the marriage and can be in the husband’s name, the wife’s name, or both their names.

"Party"
...A person who is the plaintiff or defendant in the absolute divorce lawsuit.

"Plaintiff"
...The person who files for the absolute divorce.

"Post-Separation Support"
...Money paid to a spouse for a specific period of time, usually temporary, until the court orders or denies an award of alimony.

Property :
  <  "Personal Property"
     ...Personal belongings (furniture, clothing, tools, cars, trailer).

  <  "Real Property"
      ...Land or other real estate.

"Pro Se"
...A person who seeks an absolute divorce on his or her own and without the legal assistance and representation of an attorney.

"True Copy"
...A copy of a document that is signed and certified by the Clerk of Court as an official copy.

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Advice & Guidance Agreement

Participants in the Pro Se Plus Absolute Divorce Clinic must sign the "Advice & Guidance Agreement"  [Click here to view the "Advice & Guidance Agreement" (a pdf document).]

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Prepared by Legal Aid of North Carolina - Asheville Office
184 East Chestnut, Asheville, NC 28801 · 828-236-1080
1-877-439-3480 (toll-free; for clients only)
FAX: 828-236-2008 · E-mail: angied@legalaidnc.org

 

 

 

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Disclaimer

The materials contained on this website are for information and educational purposes only and do not constitute legal advice. Please contact your Legal Aid of North Carolina office or a private attorney if you need to speak to an attorney regarding your particular situation. See our complete disclaimer.

Mission Statement

Legal Aid of North Carolina is a statewide, nonprofit law firm that provides free legal services in civil matters to low-income people in order to ensure equal access to justice and to remove legal barriers to economic opportunity.

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