Initiating Divorce


#1

I wish to divorce my wife. However, I expect my wife to contest everything and I don’t expect her to sign a separation agreement. How can I go about initiating or filing for divorce? Would just moving out be enough to start the separation? What kinds of things are legally admissible as proof that we are living separate and apart?

Also, and this is probably a pipe dream, I recently found out that my wife owes over $35000 in child support for two of her children, one child support case is an Arizona case and the other one in North Carolina. Is this grounds for an annulment since she didn’t disclose these facts prior to us getting married?


#2

Another follow up question: my wife will also be facing a criminal trial very shortly. This criminal trial has severe civil implications ( my wife was charged with misdemeanor death by vehicle): am I potentially financially at risk as her husband? My wife is unemployed, the vehicle and insurance policies were in my name (I was not in the car with her at the time of the accident however). Could I file for separation or divorce while she is in jail or prison?


#3

You have to live separate and apart for 1yr and 1 day to file for divorce. If she is in jail you need to communicate to her your intent to separate for purpose of divorce if you want to clock to start to run. The undisclosed debt isn’t a basis for annulment.


#4

I have been married for two years. Do you always have to be separated for 1 year before getting a divorce. Also, can I move out with my belongings before initiating the separation/divorce?
THanks,
Meh3830


#5

In the State of NC you must be separated for a year before initiating the divorce proceedings. (FWIW, Any resumption of living together during that time will reset the clock.) Separation is not a formally filed process, it begins the moment you move out with the intention of remaining separate. Usually an affidavit (like the one on the papers when you file for the divorce) is sufficient to demonstrate separate and apart, however, if she challenges, make sure you have your utility bills or rental contract available. If you wish to keep the residence, then she will have to move out whether it be voluntarily or through jail. If you choose to move out and your name is still on the lease/mortgage, you’ll still be liable for any payments.

FWIW, and Ryan will have to confirm this, but if your concern about your STBX’s undisclosed debt has to do with you being held liable in the divorce process for it, I don’t think it matters. The debt was incurred as an individual prior to marriage and wasn’t shared so therefore it is hers and hers alone. The only issue that it might present is during equitable distribution where you make take on more of the actual marital debt to offset, however, there are arguments to be made (like the lack of disclosure) to prevent that from happening.

As far as the accident and liability goes, it is possible that you may be liable under the family purpose doctrine, however that is somewhat limited in this state. If you knew that she was an irresponsible driver and she had still had your permission to use the vehicle, you may be held accountable. However, if she had been a normal driver and you had no knowledge of any driving issues, then you shouldn’t be, although they may still file something against you that you’ll have to refute in court. Sorry. You might want to read this for a little info: http://caselaw.findlaw.com/nc-court-of-appeals/1341707.html

NOT AN ATTORNEY