Uncontested divorces are often seen as the most efficient and affordable way to end a marriage in Asheville. When both parties agree on the terms, the process should be straightforward. But even in amicable cases, small mistakes in filing, service, or documentation can lead to weeks—or even months—of delay. And when you’re ready to move forward with your life, few things are more frustrating than waiting on paperwork because of a procedural error.
The North Carolina divorce system requires strict adherence to specific legal procedures. Missing one step, failing to file a form correctly, or using improper service methods can result in rejections, court continuances, or outright dismissals. Understanding these risks in advance is critical.
This blog will walk you through the most common mistakes that delay uncontested divorces in Asheville and explain how to avoid them. Whether you are filing on your own or working with an Asheville divorce lawyer, being informed about these pitfalls will save you time, money, and stress.
1. Filing Before You’re Eligible Under North Carolina Law
One of the most basic—but common—mistakes is filing before meeting the state’s eligibility requirements for divorce. In North Carolina, you must satisfy two mandatory conditions:
- You and your spouse must have lived separate and apart for 12 consecutive months
- At least one spouse must have resided in North Carolina for at least six months before filing
It’s not enough to be emotionally separated. The court requires physical separation—living in two separate residences. If you file even one day too early, the court may reject your case or delay final judgment.
How to avoid it:
Carefully calculate your separation date and count twelve full months. Provide a clear, sworn statement of separation in your complaint and summary judgment affidavit. An Asheville divorce lawyer can ensure that this date is accurate and properly documented.
2. Errors in the Divorce Complaint
The Complaint for Absolute Divorce is the foundational document in your case. Mistakes in this document can create serious setbacks.
Common issues include:
- Leaving out required allegations (e.g., date of separation, residency)
- Failing to request name change restoration if desired
- Not including proper party information (e.g., full legal names)
- Inaccurate statement of jurisdiction
- Forgetting to include custody or support language (if needed)
A poorly drafted complaint can result in denial of summary judgment, or worse—a dismissal of your case.
How to avoid it:
Use the official Buncombe County form as a template or hire an Asheville divorce lawyer to draft the complaint correctly the first time.
3. Improper Service of Process
After filing your complaint, you must serve your spouse with a copy of the Complaint and Civil Summons. Service of process is a constitutional requirement. If done incorrectly, the court cannot proceed with your case.
Improper service may occur when:
- You hand the papers to your spouse yourself (not allowed)
- You use standard mail instead of certified mail with return receipt
- The sheriff’s affidavit is incomplete or missing
- Your spouse signs a waiver without a notary (not valid)
- You fail to file proof of service with the court
Incorrect service means your spouse hasn’t been properly notified, and the court cannot enter a judgment.
How to avoid it:
Use certified mail, sheriff’s service, or a professional process server. Always file proof of service and allow 30 days for a response. If your spouse is missing, follow proper procedures for service by publication, including an affidavit of diligent search.
4. Waiting Period Miscalculations
After your spouse is properly served, North Carolina law requires a 30-day waiting period. If you file a motion for summary judgment or request a hearing before this period ends, your request will be denied.
This waiting period exists to give the defendant time to respond. Even in uncontested divorces, this procedural rule applies.
How to avoid it:
Track the date of service carefully. Do not submit your summary judgment motion or hearing request until the 30-day period has passed. If using service by publication, additional time is required (typically 40 days from the first publication date).
5. Incomplete or Incorrect Summary Judgment Packet
Many uncontested divorces in Asheville are resolved via a motion for summary judgment, allowing the case to be finalized without a hearing. However, summary judgment requires a complete and accurate packet of documents.
Common errors in this packet include:
- Missing affidavit of separation
- Lack of proof of service
- Not filing a military affidavit
- Failing to include the proposed judgment
- Incorrect legal statements in the motion
Clerks and judges will not finalize your divorce if any piece is missing or flawed.
How to avoid it:
Include the following in every summary judgment filing:
- Motion for Summary Judgment
- Affidavit of Plaintiff (with separation and residency facts)
- Military Affidavit (confirming defendant is not on active duty)
- Proof of Service (certified mail receipt, sheriff affidavit, etc.)
- Proposed Judgment of Absolute Divorce
- Any waiver of appearance or consent forms
An Asheville divorce lawyer will ensure each document is correct, complete, and filed in the proper order.
6. Failing to File a Military Affidavit
North Carolina courts require a Military Affidavit in every divorce case to confirm whether the defendant spouse is on active military duty. This is due to the protections afforded under the Servicemembers Civil Relief Act (SCRA).
If you skip this step—or file it incorrectly—your judgment may be delayed or denied.
How to avoid it:
Always file a Military Affidavit stating whether the defendant is in the military. If they are, additional steps must be taken to protect their rights. You may need to provide proof of military status or request a waiver.
7. Incorrect Use of Waivers or Consent Forms
Sometimes, in uncontested divorces, the defendant will sign a Waiver of Service or Answer and Waiver of Further Notice. These can simplify the process, but only if executed properly.
Common problems include:
- The waiver is not notarized
- The waiver is not dated
- The waiver is filed before the complaint is even served
- The waiver lacks clear language about service and appearance
Improperly executed waivers may be rejected, which restarts the service process and delays the case.
How to avoid it:
Use court-approved forms and ensure the waiver is signed after the complaint is filed. Have it notarized and file it with the court promptly.
8. Name Change Requests Left Out
Many individuals want to resume their maiden name or a prior surname as part of the divorce. But if you fail to request this in your complaint or summary judgment documents, the court will not grant it.
You cannot add this request retroactively after the divorce is finalized—you’ll have to file a separate name change petition.
How to avoid it:
Include the request to resume a prior name in both your Complaint for Absolute Divorce and in your proposed Judgment. Use the full name you wish to resume and ensure it matches identification records.
9. Including Issues the Court Cannot Address
In an uncontested divorce, especially one resolved by summary judgment, the court will only grant a divorce—not divide property or award custody—unless specific legal requirements are met.
Mistakes include:
- Requesting alimony or equitable distribution without filing a proper claim
- Including custody or child support in the complaint but lacking supporting evidence
- Trying to modify or enforce a separation agreement without jurisdiction
How to avoid it:
If you need the court to address property, alimony, or parenting issues, file proper claims and provide adequate notice and documentation. Otherwise, resolve those issues in a separation agreement executed outside the court process.
10. Trying to Rush the Process
Filing documents out of order, submitting incomplete forms, or trying to skip steps to speed things up often backfires. The result is rejected paperwork, court notices requiring correction, and delayed finalization.
How to avoid it:
Be patient and thorough. An uncontested divorce typically takes 60–90 days from filing to final judgment. Rushing rarely works and often adds weeks of delay.
11. Using Outdated or Incorrect Forms
Using forms from other counties or online templates not specific to North Carolina—or worse, another state—can cause confusion and rejection.
Mistakes from incorrect forms include:
- Missing required language
- Incorrect jurisdictional statements
- Missing notary blocks or certificate of service
How to avoid it:
Use only Buncombe County or North Carolina Judicial Branch-approved forms. If unsure, consult with an Asheville divorce lawyer for the most current and court-accepted documents.
12. Not Incorporating or Clarifying the Separation Agreement
If you and your spouse have a signed separation agreement, you must decide whether to incorporate it into the divorce judgment or leave it as a separate contract.
Mistakes include:
- Failing to reference the agreement at all
- Attempting to incorporate a vague or outdated agreement
- Filing a judgment with unclear incorporation language
How to avoid it:
Decide up front whether to incorporate the agreement. If so, attach a signed copy and use clear language in the judgment. If not, make sure the court knows it’s a separate, enforceable contract.
13. Failing to Attend the Hearing (When Required)
While many uncontested divorces in Asheville can be resolved through summary judgment, some cases still require a court appearance—especially if a judge wants clarification.
If you miss your scheduled hearing or fail to bring the necessary documents, the judge may continue or dismiss the case.
How to avoid it:
Check with the Clerk or your Asheville divorce lawyer about whether a hearing is required. Show up early with all paperwork in hand and dress appropriately for court.
14. Submitting Incomplete Financial Information (When Required)
While not always needed in uncontested divorces, financial affidavits may be required when child support or alimony is involved. Incomplete or inconsistent information can delay approval of your judgment.
How to avoid it:
If you are including child-related provisions or support, be prepared to submit financial affidavits, pay stubs, or tax returns as required.
15. Not Following Up After Filing
Sometimes the court clerk needs additional information or notices an error. If you don’t check your mail or court docket, you may miss a request that delays your judgment.
How to avoid it:
Stay in touch with the Clerk’s Office or your Asheville divorce lawyer after filing. Respond promptly to any court correspondence or rejection notices.
FAQ
Can a small error really delay my uncontested divorce in Asheville?
Yes. Even minor mistakes in service, affidavits, or timing can result in weeks or months of delay.
What happens if I serve my spouse incorrectly?
The court may refuse to enter judgment until service is corrected and properly documented.
Can I fix a mistake after my divorce is finalized?
Only in limited cases. Some mistakes, like omitting a name change request, require a separate legal filing after the divorce is complete.
Is it better to file for summary judgment or go to a hearing?
Summary judgment is faster and doesn’t require a court appearance. However, some cases may still require a hearing depending on the judge’s preference.
How do I know if my spouse is considered served?
You must file proof, such as a signed return receipt or a sheriff’s affidavit. The court must accept this proof as valid.
Can the court reject my divorce if we forgot to sign the separation agreement?
Yes, if you’re trying to incorporate an unsigned agreement into the judgment, the court may reject it.
What if I can’t find my spouse?
You may serve by publication, but you must first prove that you conducted a diligent search.
Can I submit documents by email or fax?
Generally, no. Divorce documents must be physically filed with the Clerk of Court unless otherwise allowed by local court rules.
Is it faster to file in another North Carolina county?
No. The county of filing must have proper venue based on residency. Filing elsewhere can lead to dismissal or transfer.
Should I hire a lawyer for an uncontested divorce?
While not required, working with an Asheville divorce lawyer can help you avoid costly mistakes, ensure proper documentation, and expedite the process.
The McKinney Law Group: Helping Asheville Couples Finalize Divorce Without the Fight
You’ve already reached an agreement—now let us help you make it official. We provide comprehensive legal support for uncontested divorces across Asheville and surrounding areas.
Contact us at 828-929-0642 or email [email protected] to begin.