Experienced Divorce Attorney in Gastonia

Absolute Divorce

Our office successfully handles approximately 100 absolute divorces each year. An absolute divorce completely severs and terminates the marital relationship, and the parties are free to remarry. A court case must be filed to obtain an absolute divorce. Once the other spouse is served with a copy of the summons and complaint, he or she has 30 days to answer the complaint. If no answer is filed, a divorce judgment can be obtained after the 30 day period. If an answer is filed that admits the allegations of the complaint, the divorce can generally be obtained immediately.


It is important to know that a divorcing party's right to equitable distribution of property and/or spousal support must be filed before the judgment of absolute divorce is obtained. If these rights are not protected by a filed pleading prior to the divorce judgment being entered, such rights are forever lost.


In most cases, a client is not required to make a court appearance for Mr. Kelso to obtain her or his absolute divorce.

Grounds

A party to the divorce must be a resident of North Carolina for more than six months prior to filing an action for absolute divorce. There are only two grounds for absolute divorce in North Carolina: (1) separation for more than one year; and, (2) insanity of the defendant spouse. An insane party may not legally obtain an absolute divorce in North Carolina. Most parties obtain an absolute divorce based upon being separated for more than one year.


A party is not eligible to file for an absolute divorce until one year following the date of separation, which is generally defined as not living together under the same roof. Parties who have separated, and then resumed marital relations, are not eligible to file for an absolute divorce until they have been living separate and apart for one year. However, isolated incidences of sexual intercourse by spouses do not constitute a resumption of marital relations under North Carolina's divorce laws.

Child Support

In most cases, the trial court will determine what amount of child support, if any, will be paid by one parent to the other based upon the North Carolina's Child Support Guidelines. Mr. Kelso will provide a copy of the guidelines at your initial consultation. A computer program is available to accurately determine the amount of child support. A number of factors determine the amount of child support including the income of the parties, cost for childcare, cost of health insurance, other child support being ordered to be paid, etc. In some cases, the court will deviate from the guidelines where there are grounds to do so.

If a party loses his or her employment, experiences a change in income, or change in custody, it is imperative that a motion be immediately filed to modify the amount of child support being paid. Courts will generally not retroactively modify child support. If there has been a change in financial circumstances that requires a change in the amount of child support, e.g., a substantial increase or decrease in income, it is important that a motion to modify child support be immediately filed. As a general rule the court will also not retroactively modify a child support arrearage. 

Annulment

Annulment is a judicial decree or judgment that a marriage is void. The effect of an annulment is to establish that the marital status never existed. Annulment and divorce are fundamentally different in that an annulment renders a marriage void from the beginning, while divorce terminates the marriage as of the date of the entry of the divorce judgment. Generally, an annulment proceeding is for causes for avoidance of the marriage existing at the time of the marriage, whereas a divorce is for causes arising after the marriage is in existence.


For a marriage that takes place in North Carolina to be valid, there must be: (1) capable parties; and, (2) solemnization by a ceremony performed by or before persons legally authorized to solemnize the rite of matrimony. As a general rule, North Carolina recognizes any marriage that is valid in the place where it is solemnized. However, North Carolina does not recognize same-sex marriages. North Carolina also does not recognize common law marriage in North Carolina, but it does recognize valid common law marriages occurring in other states.

Grounds for Annulment:

The appellate courts in North Carolina have recognized the following grounds for annulment:

  • Bigamy (either party already married)
  • Improper relationship (incestuous relations)
  • Impotency at the time of marriage
  • Being underage without proper authorization
  • Incompetence or insanity
  • Fraud
  • Duress
  • Undue influence

The material facts in every complaint seeking an annulment are deemed denied by the defendant, even if the defendant fails to serve a responsive pleading. The facts to establish an annulment must be found by a judge or jury. The burden of proving the invalidity of a marriage is upon the party attacking the validity of the marriage.

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