[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 also 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
to filing 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.
(back to contents)
Advice & Guidance
Agreement
Participants in the Pro Se Plus Absolute Divorce Clinic must sign
the
"Advice & Guidance Agreement"
(a pdf document).
(back to contents)
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
Disclaimer
The materials contained on this website
are for information and educational purposes only and do not
constitute legal advice.
Also please note that Legal Aid of North Carolina does not
provide legal assistance by E-mail. 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.