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What to Expect During an Uncontested Divorce Proceeding in Wake County

What to Expect During an Uncontested Divorce Proceeding in Wake County

Wake County offers two different types of divorces:

  1. Clerk’s Default Divorce
  2. Summary Judgment Divorce

Both types have the same legal effect. They differ in the type of motion filed and whether there is a hearing or not. All divorce petitioners can file for a Summary Judgment Divorce, while only certain types of cases can proceed with a Clerk’s Default Divorce.

Clerk’s Default Divorce

Requirements

To be able to proceed with a Clerk’s Default Divorce, your situation must meet the following requirements:

  1. Either you or your soon-to-be ex-spouse must be a resident of Wake County
  2. You are not dividing a retirement plan that requires a court order as part of your divorce settlement (if you are not sure if you will need a court order to divide a retirement account, you should consult with an attorney for your specific situation)

Process

If you meet these two requirements, you can choose to proceed with a Clerk’s Default Divorce. The basic process is as follows:

  1. The Divorce Petition or “Complaint” is filed stating the bare minimum facts like your date of marriage, date of separation, and whether you have any minor children.
  2. The Complaint, along with a “Civil Summons” is “served” on your spouse either by Sheriff’s deputy or certified mail.
  3. Thirty-one days after your spouse is “served,” if your spouse has not filed anything with the court, a Motion for Default will be filed with the Clerk, requesting your divorce be finalized.
  4. The Clerk reviews your court file, and if all procedures have been properly followed, she will sign your divorce judgment.
  5. The Clerk will return copies of your divorce judgment to your attorney, and then your attorney will provide you with copies.

Things to note

  • There is no hearing for you or your attorney to attend. Therefore, you will find out when your divorce was granted days or even weeks after it was granted. If it is important to you to know exactly when you are divorced, make sure you ask for a Summary Judgment Divorce.
  • You can change your name back to your maiden name if you are the one filing for the divorce, but you cannot change your name in the divorce judgment if your spouse is filing for the divorce. It’s necessary to file a separate Notice of Name change after the divorce if finalized.

Summary Judgment Divorce

Process

If you use a Summary Judgment process for your divorce, your case will proceed as follows:

  1. The Divorce Petition or “Complaint” is filed stating the bare minimum facts like your date of marriage, date of separation, and whether you have any minor children.
  2. The Complaint, along with a “Civil Summons” is “served” on your spouse either by Sheriff’s deputy or certified mail.
  3. Thirty-one days after your spouse is “served,” if your spouse has not filed anything with the court, a Motion for Summary Judgment and “Notice of Hearing” will be filed requesting a hearing to finalize your divorce. The hearing must be at least 13 days after this Motion is filed. Copies are mailed to your spouse.
  4. All Summary Judgment divorce hearings in Wake County are held on Friday mornings.
  5. The Friday of your hearing your attorney presents the case to the judge, and, if all procedures have been properly followed, she will grant your divorce that day.
  6. Neither you nor your spouse needs to attend the hearing unless your spouse wants to contest the divorce.

Additional information

If you don’t retain an attorney to represent you in your divorce, certain parts of your process will be different than those listed above. For example, you will have to attend a hearing and testify as to the facts in your Complaint. Please contact the Wake Civil District Court for more instructions if you plan to represent yourself in your divorce.

Generally speaking, you can expect your divorce process to take between 45-60 days from the date your Complaint is filed until your Judgment is granted, depending on how long it takes to serve your spouse.

2016-03-16T14:02:20+00:00 April 30th, 2014|Divorce in North Carolina|0 Comments

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