Clarification on six-month residency requirement and EDI


#1

The context is as follows: My spouse and I have separated on April 6, 2014. Will be married for 28 years. She moved out of our home by taking temporary residence with her boss, who is of same gender and also separated. I do not know if she pays rent or other expenses for shelter, I do not know if it even matters although she claims she is paying. Effective 4 months after the separation date or 8 months prior to when a divorce can be filed, she intends to move out of the state of North Carolina.

Couple of weeks ago, she had a consultation with an Attorney as she was attempting to move the separation date from April 2014 to October 2013. She was set straight she couldn’t do that and had to wait one year to file for a divorce. I am surprised the Attorney did not advise her on the six month residency requirement. Maybe she received advice and maybe my thinking of her losing a divorce filing on a technicality in not rational?

My spouse and I are in the poor house, I use to be the main provider but over the past two years this has changed to where I have been dependent upon her. I am not certain if grounds of filing abandonment are weak or strong? Her preference would be to keep the legal expenses limited and so there is no legal representation to start the Equitable Distribution Inventory Affidavit in process and I will not agree to a Separation Agreement sooner than 90 days prior to the divorce date. I do not want a divorce, she does.

She wants me to sell the house during our separation, I will not agree to that. I have been unemployed for 3 years and the risk of foreclosure is very high … still standing firm I will not leave the house. There is also a high degree of risk of bankruptcy proceedings by me prior to the divorce decree. However, this process may also involve a one year waiting time period.

She wanted to have her lawyer draft up some equitable distribution of pension and/or 401k before the divorce decree, so she can use it to get herself established either as renter or home ownership via cash … I will not agree to these terms during the separation. As of this week the spouse has been coming over to the house to selectively inventory marital property. There have been absolutely no “Discovery Financial Documents” done. I don’t know if I should even totally object to her moving items out of the house and even if I did whether it’s too late to stop her from moving marital property out of our home this Friday.

Spouse wants to partially disposition to our college student dependent adult child some bedroom and living room furnishings for a leased townhouse. I am agreeable to listing this out in writing and taking pictures. The aspects of assigning value are convoluted. I can trace an aggregated net total amount for a transaction but very difficult to assign an individual value - my preference would be to go with the higher replacement market value verses original purchase price.

My spouse is also doing the same for her basic living needs for a bedroom set, kitchen table and various accessories with the intent to move out of the state of North Carolina, effective 4 months after the separation date or 8 months prior to when a divorce can be filed.

So my question is based on the timing of her move out of state … will the six-month residency requirement be met? From my perspective the answer is no, the court would not have jurisdiction to try the action and any decree rendered would be void. So I just need some help in understanding North Carolina law states that you may file for divorce here if you have been living in North Carolina for at least six (6) months prior to the date of filing. You cannot file before then, even if you’ve been separated for over a year. Can you put this into perspective given my context. A tangent question I have is what would happen if both spouses move out of state, still her’s at 4 months but what if I have to move out less than 6 months prior to the divorce filing date? Would I be better off moving due to foreclosure or continuing financial hardship, if so less than or greater than 6 months from the one year date?


#2

I cannot advise you as to whether you should move or whether you should let the house be sold in foreclosure.

As far as the jurisdiction issue goes, for NC to have jurisdiction, one of the parties must reside here for at least 6 months prior to the institution of the action. If you stay in North Carolina, you can file here after your one-year separation period is over. If your wife files for divorce in whatever state she lives in now, that state would most likely lack personal jurisdiction over you to grant the divorce, unless the court found you had sufficient minimum contacts with that state.


#3

Thank you Ms. Willis for your quick succinct response regarding: “You or your spouse must have been a resident of North Carolina for at least (6) six months prior to the date of filing your complaint”.

I am short on time as my wife, who is the Plantiff who wants to be divorced is moving via UHaul on Friday with joint marital household goods that are in my possession. I have not been served any court documents but as the Defendant need to be advised how to protect my rights. Since we both have been legal NC residents since 1995, the use of “prior” could be misconstrued as I like to deal with absolutes of minimum/least, equal or maximum/most.

It is very clear a minimum of 6 months prior to filing a complaint. By substituting “prior” with “before”, one would create a time line based on the Divorce filing status as one year, plus one day from separation date that you would therefore subtract 6 months from 12 requiring the Plantiff to be a legal resident of NC during the last 6 months before the 12 month separation time period. Let me know if I have misinterpreted the timeline at all?

You have also advised me the Plantiff would not have NC Divorce jurisdiction over me the Defendent, as their claim would be VOID. However if the cards were turned and I wanted to file for Divorce as the Plantiff I would have to do so in the state of her legal residents, which is already South Carolina as she obtained a Driver’s license and plate only 3 months into the separation time period. I know for a fact, if my spouse wanted to file for divorce in SC, the one year separation time period would be reset based on her move date into the SC residence, in effect losing the 3 to 4 months in NC. However, SC would not have jurisdiction over me since I am not a resident of SC.

After clarifying the residence time line, the main point concerning me is the aspect in defining “complaint”.

Is complaint solely defined as the Divorce Hearing?

Or could the complaint be one and/or several events from the thirty seven (37) Wake County - District 10 Domestic Rules and Forms on a Hearing(s), Cause(s), Custody, Discovery, Affidavit(s), Mediation, Disclosures (Support or Equitable Distribution), and Equitable Distribution Inventory.

Since my spouse if moving this Friday I have been in process of creating the Equitable Distribution Inventory. It is my understanding it is the MOVING party responsibility in submitting this to the court. However if I am trying to be fair and amicable by settling out of court. I don’t understand her rational as she will be moving the joint marital property into storage as she will be temporarily living as a 3rd roommate in a 2 bedroom apartment (same gender) … I think I need to be careful in refraining from using the NC Court 744_WAKE-DOM-19 and giving her a copy. Maybe you would rather recommend that I use a spreadsheet as Mr. Rosen has highlighted in the 50 Divorce Tips.

I believe if I use an official document as the Defendent, the Plantiff could turn around and submit it to her Lawyer and/or independently by herself to the Court (if it has been notarized) as a "compliant. In this instance, rather than it being a complaint for Divorce, it would be a compliant as part of the normal “Discovery Process” detailing the financial preparation prerequisites necessary to draft the Equitable Distribution and Separation Agreement. My spouse in the context of a broad definition of a “compliant” would satisfy the (6) month NC residency requirement to one or several of these legal lawsuit processes … My fear being it would set precedents with one event leading onto the next but in the end my perception is it would be difficult for the court to enforce and distribute because the Divorce Hearing would be VOID but it would also put me in a difficult situation of restitution for all of the joint marital items she would have in her possession. The end game is my spouse wants to be able to minimize legal expenses by settling out of court. Where as I don’t want the Divorce, even if by means potentially some sacrifice and risk of marital assets by her not having legal jurisdiction.

I’d like to avoid the emotional repercussions if I take a tough stance and say no with the items my spouse has staged for moving this Friday. It could trigger her response to involve her lawyer to escalate … and I want to avoid that reaction as it would have a harmful relational impact not only with my spouse but also my adult child that needs her bedroom furnishings for her graduate studies. It could even trigger a response she will not move until the separation process details are worked out first. That is the 1st tip … don’t just leave. There are consequences in loosing rights.

Thank you for reviewing and responding today as I need a 2nd opinion on these technicalities involving timing of events.


#4

Ms. Lindsay. I am using this article written by Mr. Rosen that answers my question with a definitive YES on page 2 of 14 … (link is modified because this forum does not permit url links to be posted)

rosen.com_divorce_divorcearticles_navigating-basic-court-procedure-in-north-carolina_?hvid=37QYfL

A civil lawsuit is started when someone or some agency files a complaint. The complaint makes certain
factual assertions (which are known technically as “allegations”) to establish the complainant’s reasons
for believing he or she is entitled to the relief being sought in the complaint. A complaint may contain a
single claim (also known as a cause of action), or it may contain multiple claims. Thus a complaint could
seek custody and/or child support alone, or in combination with other claims.
In family law matters, there are ordinarily no strict time limits (set by “statutes of limitations”) within
which a complaint must be filed. Basically, someone files a complaint at the moment he or she decides
the court needs to become involved. Sometimes the complaint is filed to get the other side’s attention, as
an incentive to serious work on settlement. Other times the complaint is filed because there is no other
way the case is going to get resolved.

Although I do not understand the purpose other than making my life a living nightmare, especially if my spouse wants and can afford an Attorney to pursue civil complaints. The strategy is this, this is a game of leveraging and bluffing the other party. I don’t understand the point in pursuing these complaints other than harassment to make my life miserable. Especially if in the end, what you have told me is true, the Court would not honor reviewing the Divorce Hearing because of Jurisdiction issues not being satisfied six months prior to the hearing date. I’m assuming hearing date rather than 1 year 1 day of separation, but in either case this may not be satisfied unless of course my spouse tries moving again from SC to my daughters apartment in NC.

It is a scenario that could happen because of acts of financial survival to avoid being homeless where adults still suffering from the Great Recession have had to use their family networks for shelter. I have come to terms and I am at peace that I will inventory and take pictures of our martial property (it’s value is very high and it will bring down her claim to the pension and 401k). I will not give my spouse my list because she is not following due process or court procedures as the MOVING party is obligated to do it. I feel somewhat like I am reacting in duress because if I oppose the moving of these items in my possession then the stakes could be increased by the involvement of lawyers from each side as it will make our financial situation even worse. Furthermore, as I stated earlier if she doesn’t move to SC then it will solidify her case(s) against me and I don’t want to tip her off on this technicality that should have been discussed between her and her Attorney.


#5

To be clear, I want to address this statement:

“You have also advised me the Plantiff would not have NC Divorce jurisdiction over me the Defendent, as their claim would be VOID. However if the cards were turned and I wanted to file for Divorce as the Plantiff I would have to do so in the state of her legal residents, which is already South Carolina as she obtained a Driver’s license and plate only 3 months into the separation time period. I know for a fact, if my spouse wanted to file for divorce in SC, the one year separation time period would be reset based on her move date into the SC residence, in effect losing the 3 to 4 months in NC. However, SC would not have jurisdiction over me since I am not a resident of SC.”

I did not advise as such. You do not have to file for divorce in SC, you certainly can file in NC. Her moving to SC does not reset the separation period. In order for parties to be legally separated, they must simply live separate and apart (not under the same roof). If you have been living separate and apart prior to her move to SC, the move won’t change the effective date of separation.

If she files for divorce in SC, you will be served with a complaint for absolute divorce as well as a civil summons. You will have 30 days after service to answer the complaint, and in your answer you may raise as a defense that SC lacks jurisdiction over your divorce and that NC is the appropriate venue. You can also contest the date of separation in your answer. Her filing in SC does not make her claim void, nor does it mean that her claim is lost on a technicality.

A complaint is simply the legal document used to bring a law suit. If you are able to resolve your property issues by agreement, you will not need to file a complaint for ED. However, if you are unable to agree on how to divide the marital property, you will need to file a complaint for ED and let the court determine how to split the marital assets and liabilities. Whether you chose to file a complaint because of feared emotional repercussions is entirely up to you. Legally, you have the right to do so.

A good resource for you to look through is our DIY Divorce Kit. The kit includes a sample complaint, explains how to answer the complaint, discusses service of process and other relevant topics.


#6

Hi Ms. Willis. I have to abide on the advice of Mr. Rosen, not to get caught up too much in the legal jargon and to keep words simply stated in lay persons terminology. Thus I may have not spoken incorrectly or be over analyzing the events that transpired.

My spouse has moved to South Carolina without an agreement on how to divide the Marital Assets, specifically Jewelry, Animals, and Household Goods and Special Collections. Since she is the moving spouse, it was her responsibility to submit me a list and to determine fair market value on DOS and present Future Market Value. She did not do so. I have documented this and have supporting documents with photos but I don’t intend to do her work for her and will therefore hold onto this as evidence to file a complaint for ED (if I have to).

I wanted to do the honorable non-emotional thing by letting her have the essentials for living separate. About the only written short list of items was a mobile text message, as her request quickly expanded verbally and through her actions on move out day practically leading to requests to leave with the kitchen sink! Both SC and NC Courts do not divide the assets until the divorce hearing unless there is prior agreement or complaint filed. I should have simply said NO but I instead tried to be reasonable. I did inform my spouse, she was essentially shopping for furnishings and household goods that would proportionally decrease her income equity, because I wanted to make sure she understood the net impact to the his and her balance sheets.

There was a Special Collection put into the U-Haul which is being contended by me because it must be appraised first. I informed everyone involved as movers that they did not have my permission to remove the Special Collection from my possession. They managed to get it on the truck without my awareness until they changed municipal locations and so I involved the Police in a different city to create an incident number as the Police could not enforce my request to unload it from the truck primarily because they can only enforce court orders not a civil action. Also it was such an inconvenience to the other party because it was stashed all the way in the front with everything staged behind it (because it was hidden from view). My spouse’s concession was to make a recorded public commitment to return it to my possession by end of this month. In the end, the proposed distribution will be to the Wife but not until after it has been appraised by an independent bonafide third party that isn’t a referral with a potential conflict of interest as my spouse has connections as it is might be easy to have a collaborator appraise an unfair value.

Part of the misunderstanding involving jurisdiction wasn’t based on resetting the separation date in NC but to make mention my spouse would have to file from SC and be subject to different criterion from NC: “To file for divorce in South Carolina, one party has to have resided in South Carolina for at least one
year if the other spouse lives in another state. If both parties have lived in South Carolina for at least
three months, either party can file for a divorce in South Carolina. If one party has lived in South
Carolina for at least one year, that party can file for divorce in South Carolina even if the other
spouse has never set foot in this state.” I was simply trying to state based on SC criterion my spouse not only has to satisfy one year continuous separation without living together at any point during that year but she will not be able to even file in SC for a “simple divorce” primarily because we have not reached an agreement to divide the marital property and/or debt. My spouse will therefore need to have an Attorney file a complaint in SC. Neither of us have minor children, so there is no child custody or visitation agreements … need to agree on the proposed distribution as “joint” for a Animal that I am not willing to give up possession of, as my proposal will remain as “joint” ownership/custody (sounds silly, but pets are family).

By getting your input and the advice of other men that have been divorced I am getting a good perspective on strategy … One of the suggestions from a Divorcee was it is better to be the Plantiff rather than the Defendant because rather than being reactionary you can be proactive and in control over the process and procedures. Do you have any thoughts on this?

For example, you had said “you may raise as a defense that SC lacks jurisdiction over your divorce and that NC is the appropriate venue.” Would this be tactically done by me as a counter lawsuit/complaint - Specifically as the Plantiff rather than Defendant? You had made reference in your most recent reply,"you [me] will need to file a complaint for ED and let the court determine how to split the marital assets and liabilities. Are you saying that I am only limited to ED or do I still have full rights of Hearing(s), Cause(s), Custody (n/a), Discovery, Affidavit(s), Mediation, Disclosures (Support or Equitable Distribution), and Equitable Distribution Inventory? I wouldn’t like to leave it up to the courts to make the ED decision absent from following the equitable distribution steps to negotiate a mediation agreement. “Put most simply, jurisdiction is the procedural law telling litigants who can sue and be sued and what sorts of actions may be prosecuted in which courts.” (Source: North Carolina divorce court procedure, page 6/14). It also says (page 3/14) "One of you also needs to have lived in North Carolina for at least six months prior to the filing of the complaint. That is the residency requirement for the court’s obtaining jurisdiction over an absolute divorce. It is based on this that my spouse has lost her right to file for an absolute divorce in NC, but she still has the right to file a complaint in SC after satisfying SC requirements. It doesn’t exclude her from filing a complaint other than Absolute Divorce but I believe if I don’t consent to a partial distribution before the divorce hearing that there is little sense in even going through the motions in NC because I don’t intend to file for divorce.

I don’t want or consent to an absolute divorce. I don’t even believe in it as the end objective in being separated according to my religious beliefs in 1 Cor. 7:10-11. Furthermore, I really love me wife as my soul mate inspite of all of this. It seems if I am going to defend myself I will need to compromise on my beliefs to take an offense strategy by litigating as the Plantiff in a counter lawsuit in NC. I will have to file some form of complaint as a rebuttal to object to any of her filings (In either NC or SC). Now I don’t think this can be dragged out indefinitely but I’m certain it can be delayed and as a result she will have decreased leverage, since she hasn’t followed Mr. Rosen’s 1st tip … “don’t just leave. There are consequences in losing rights.”

Now in regards to ED, I am relying upon North Carolina Property Distribution in Divorce article entitled “Equitable Distribution: What You Need to Know”. The key highlights to match my scenario is on page 1/5:

"At any time after the separation of the parties, either may file an action for ED, either as a separate
action, or together with another action brought pursuant to Chapter 50, or as a motion in the cause. A
final ED judgment may be rendered either before or after the parties are divorced, at the discretion of a
judge. If the judgment is being entered by consent, the parties themselves can stipulate to do so prior to
the divorce.

Temporary orders and injunctive relief are obtainable under the terms of special statutory provisions that
allow for injunctive relief to prevent disappearance, waste or conversion of property alleged to be marital
or separate, and that also allow for entry of orders for dividing part of the marital assets. The partial
distribution may provide for a distributive award. Injunctive relief to prevent disappearance, waste or
conversion is available before or after an ED action has been initiated. An order partially distributing
marital property may not be made until after an ED action has actually been filed."

Point 1 is I don’t consent to ED prior to the divorce. If the spouse can engage in a lawsuit for ED while being a resident of SC and if I object to SC not having jurisdiction over the legal residence in NC then what happens if I never intend to file for divorce in NC? I’m OK with her ending up with marital property to meet her basic necessities to furnish a place if the separation period gets extended (indefinitely if possible).

Point 2 deals with me needing to consider a partial distribution/award or in my case having to do an injunctive relief to prevent the sale of our joint inventory or more specifically if spouse doesn’t return the Special Collection by end of this month.

I had previously downloaded your 20 page DIY Divorce Kit and it has been helpful in highlighting the procedural processes … I did not see a Sample Compliant, and that might help me visualize say an Equitable Distribution (there are samples in rosen-diy-divorce). I have also downloaded couthouseconfidential on Separation Agreements, dirty-divorce-tricks, spousal-spying and Privacy Quiz (which I guess too much info on this Forum might expose strategy and tactics as public record but I’m safe without identities listed).

Much thanks in advance for all of your feedback. I’m still on the sidelines primarily until I get some summons from the spouses lawyer or unless you can convince me I need to take action before then. I’m still waiting to hear if her lawyer is going to advise her that she shouldn’t have moved out of NC. I guess the end result would be in that case she would have to move back to NC. There is one thing I forgot to mention. I discovered while involving the Police at a different city in NC there was a male driver of the U-Haul that either has residents in NC or the SC city my wife has moved to (done some Facebook research where he is a friend of a friend). It’s not certain whether it’s strictly platonic friendship but I am not convinced where somebody of the opposite gender doesn’t have an ulterior motive as he sacrificed on entire day or two of his own time to do the journey of involving at least 6+ hours travel time … without there being some form of appreciative payback. Hopefully, nothing further happened involving an affair. The spouse recently 3 weeks ago deactivated her Facebook social media account, probably so I couldn’t keep tabs of social events. She also asked last minute for a bunch of recreational items which could be used to connect with guys involving sporting activities. Maybe I’m over analyzing but the opportunity is tempting for an affair with the 3 hour distance between us as she’s running away to start a new life. I’m still standing on the principals as married.


#7

Be aware that animals are treated the same as property in North Carolina. If you and your spouse cannot workout an agreement that allows for “custody” of the dog, and you end up going to court to settle the property issues, a judge is simply going to award the animal to one of the parties. A judge will not create a joint custody schedule allowing both parties time with the dog.

With regard to the property issues, you should also be aware that if you do not have an agreement providing for property settlement nor have you filed a complaint for ED before the divorce is granted, you will lose your ED claim. At that point, save for exceptional circumstances, you will have no legal recourse for equitable distribution. The following except is from the DIY divorce kit:

“Divorce cuts off certain rights unless they are preserved. Specifically, if you do not preserve your claims for alimony and / or equitable distribution those claims will be lost forever. Once you obtain an absolute divorce, you forever waive your right to have a court divide your property or award you alimony. These rights are permanently and irrevocably forfeited when you obtain a divorce without having previously filed claims for property distribution and / or alimony. Therefore, if you have not yet completely resolved all issues related to your alimony claim or property distribution claims you should not attempt to handle your own absolute divorce.”

That being said, if you are served with a divorce complaint you need to be ready to file your complaint for ED. The ED claim needs to be pending before the divorce is granted, or the claim is lost.

In family law, the titles of “plaintiff” and "defendant make no difference. The plaintiff is simply the first party to file, but both parties are entitled to use the same discovery tools, pleadings, motions, and the like.

I am glad you are finding the resources on our website helpful. You can also get access to a library of legal forms and communicate with an online attorney through our Rosen Online Service. This service costs $199/month, and would be a great resource for you as you navigate the divorce and ED process.