Mistakes to Avoid – Divorce Laws of North Carolina Entering a divorce filing in North Carolina 1. Assuming that a North Carolina divorce occurs automatically one year after the date the divorce was filed. There are two mistakes in that assumption. First of all, the one year waiting period to terminate the marital status begins with the date the other party is served, not the date on which the divorce is filed. Second, the divorce will not occur automatically because someone filed for a divorce and served the papers. For a judgment to be issued and entered by the court, someone must prepare and submit the proper final papers in the proper format. Perhaps one party did not file a Response to the Complaint for Divorce and therefore was later informed that his or her "default" was taken (meaning the other party may seek a judgment without the defaulting party having his or her day in court). Please note, however that the default was not taken automatically; the other party requested that the court take that action. People sometimes become confused regarding the one year delay, because it is true that the marital status itself cannot be terminated without the one year waiting period.

2.Failing to tell one's attorney enough. For example, a client's failure to tell his divorce attorney that he and his estranged partner have signed a contract to list the family home for sale could cause the attorney to spend time (and the client's money) researching or preparing documents which would not apply to the new factual situation.

3.Telling one's attorney too much. For example, if a client telephones his or her attorney to report that the other parent returned the children after an excursion to the beach and a dispute resulted over whether sunburns are harmful for the children, the client need only tell his or her attorney that the other parent does not understand the danger of sunburns.
It is not necessary for the client to spend a lot of time reiterating to the attorney every word of the long argument between the client and the other parent (unless there were threats of violence, for example). Although the client's attorney may be sympathetic about the sunburns and the client's emotional distress from seeing the children in pain, the client should keep in mind that the attorney may be charging for the time spent talking to the client. A short concise telephone call to the attorney, followed by a longer telephone call from the client to a friend or sympathetic relative would be a better course of action for the client.

4.Failing to file and serve necessary responsive papers or other pleadings on time. People occasionally miscount the number of days within which they must respond to legal papers, or they erroneously assume that they always have at least 30 days to do so. Many actions require a much shorter time to respond, sometimes as little as 24 hours (for example to object to certain emergency restraining orders). Some matters require a response or reply within a designated number of court days, and other deadlines might be stated in terms of calendar days. Additionally, there are rules on which days do or do not count (such as whether to count the first day or the last day, or the effect of the deadline day falling on a Saturday, a Sunday, or a court holiday). Leap years and months containing more or less than 30 days also can trap the unwary.

5.Waiting too long to seek the advice of an attorney.

6.Failing to immediately read the entire contents of letters and pleadings from one's own attorney or from the other party or the other party's attorney. There may be evenings after a long day at work when the last thing a party may wish to do is read through a long letter or a large package of pleadings, instructions, and other documents related to the legal proceeding. However, for too many individuals delay in reading those communications and in reading them thoroughly (including the fine print) has either
jeopardized their legal rights and property or increased their legal expenses.

7.Misunderstanding the filing and service rules of legal pleadings. "Filing" is the process of submitting the document to the court, often accompanied by a filing fee. Filing fees vary according to the document being filed. Most North Carolina court clerks have a recording which states the fees for various matters. Some courts will not accept personal checks. In some low-income cases, North Carolina courts will waive filing fees upon proper application by the impoverished party.
"Service" or "serving" is the process of providing a copy of the document to the other party. In North Carolina any competent person over the age of 18 who is not also a party to the action may serve the documents on behalf of one of the parties. In some instances the service must be personal and in others it may be by other means as set forth in North Carolina Rules of Civil Procedure,Rule 4. Because the time allotted for service varies and because a proof of service must be properly completed and presented to the court, this can create problems for people attempting to represent themselves. If filing
and service are not perfected, the consequences can vary from the postponement of a hearing to having no opportunity to present one's case to the court. Every legal matter has its deadlines, including the time for filing and service.

8.Believing that two parties can use the same attorney to prepare the necessary papers. Even where the parties are proceeding amicably through their proceeding and intend to execute a settlement agreement and avoid court hearings, they cannot share the same attorney. This creates a conflict of interest because an attorney's duty is also to advise the client on the meaning of the document being drafted and explain the foreseeable consequences. A provision that might be in the interest of one party might not also be in
the interest of the other party, and that is a conflict of interest. Instead, one party might hire an attorney to advise him or her and to draft documents after the parties have reached an agreement. The attorney may then present the documents to the other party with a provision that the other party is expected to seek an independent legal review on his or her own behalf before signing the document. When seeking an independent review, people sometimes believe that they can do so during a short one-half hour consultation. However, the reviewing attorney will want to insure that the person seeking advice fully understands the consequences of all of the provisions in the document.

9.Not "watching the bottom line" regarding attorney fees and costs. Too often divorce attorneys have clients who continue to dispute differences in estimated property values, to the extent that they spend more money that they would have gained had their own stated value been accepted by the other party originally. When the attorney reminds the client that this is happening, the client may acknowledge that the real dispute is not about money but about the client's feelings concerning the other party or other emotional and personal issues. In order to avoid spending more than the matter is worth, North Carolina
courts and attorneys provide alternatives to clients such as mediators or arbitrators who may be mutually selected and paid jointly by the parties.

10.Believing that people can perfect a "Common Law" marriage in North Carolina. It is not possible to create (or perfect) a common law marriage in North Carolina regardless of the length of the cohabitation. However, because of the full faith and credit clause in the U.S. Constitution, North Carolina will honor a common law marriage which was perfected in another state in accordance with that state's own laws, unless the circumstances of that marriage are contrary to North Carolina's public policy.

11.Relying on a verbal agreement to receive or reduce child or spousal support. It takes a court order to change an order, just as it takes a court order to create an enforceable order. Written agreements do not replace court orders unless those agreements are incorporated into the proper form and submitted to the court as a "Stipulation and Order." Attempting to enforce a verbal agreement, or even a written
agreement, has caused serious financial harm to countless individuals. If the agreement is truly in good faith, it is difficult to understand why any party to that agreement would refuse to render it into a written stipulation and order. In a case where an otherwise properly drafted written agreement has not been rendered into an order, courts are still limited in their powers to award support beyond the date of the filing of an action to collect or modify support, and a district attorney pursuing alleged or actual child or spousal support arrearages might never see the written agreement. The law of contracts does not necessarily concur with the North Carolina Family Code.