North Carolina Judicial Branch

What is guardianship?

Guardianship is a legal relationship in which a person(s) or agency (the guardian) is appointed by the court to make decisions and act on behalf of a person who does not have adequate capacity to make such decisions involving the management of personal affairs, property, or both. A court process is required to create a guardianship. Additional information to help understand guardianship, including a video titled Understanding Guardianship, is available here.

What is the role of a guardian?

A guardian is a surrogate decision maker and advocate for an individual (the ward) who has been adjudicated incompetent by the court. The guardian must allow the ward to participate as much as possible in the decisions affecting him or her. The guardian is required to preserve the opportunity for the ward to exercise the rights that are within his or her comprehension and judgment, allowing for the same possibility of error as a person who is not incompetent. The guardian must protect the ward’s right to make his or her own choices.

Is guardianship the same as power of attorney?

No. Under a power of attorney, an individual decides who will assist him or her with important decisions and the management of his or her own affairs and delegates that authority in a written document(s) without a court proceeding. In guardianship, the court (clerk of superior court) decides who will be responsible for managing a person’s affairs and/or property. The court could appoint a non-family member as a guardian. It is important to weigh all alternatives to guardianship prior to filing a petition with the court. Guardianship should only be considered when no other alternative is appropriate.

Are there alternatives to guardianship?

North Carolina law favors less restrictive alternatives to guardianship if possible. You can read more about these alternatives here. Some alternatives include:

• Durable Power of Attorney and Health Care Power of Attorney: An adult who is able to understand what he or she is signing at the time may be able to execute these documents, giving another person the authority to handle financial, medical, or other matters for him or her in the future. An attorney can help prepare these documents. Statutory short forms for powers of attorney are available here and here.
• Advance Directive for Natural Death (“Living Will”) and Advance Directive for Mental Health Treatment: Advance directives are legal documents that give instruction on what medical treatment a person would want or not want. Advance directive forms are available through the N.C. Secretary of State here. Advance directives may be filed with the North Carolina Secretary of State and information for this registry is available here.
• Representative Payee: Individuals entitled to receive certain state or federal benefits, who are determined to be unable to manage these benefits, may be assigned an individual or agency payee to receive and manage these funds for their benefit. Examples are Social Security income, supplemental security income, and veteran’s benefits.
• Bank Accounts: Joint bank accounts that require both signatures for withdrawals or that have automatic payment options can be set up to manage money.
• Special Needs Trust: This is a type of trust that holds money for the benefit of a person with a disability to help maintain eligibility of needs-based public benefits. An attorney can assist in setting up a special needs trust.
• Home Health Care: Home health care agencies can assist people with activities of daily living, like dressing, bathing, cooking, and cleaning.
• Support: People who may not be able to independently manage all details of their lives may be able to manage without a guardian if they have trusted family, social support and community support, for instance, help with budgeting or medication reminders.
• Supported Decision Making: For some individuals, guardianship can be avoided by developing a network of trusted individuals that can provide support by assisting with decision making.

When does the court appoint a guardian for an adult?

A guardian is appointed for an adult if the court finds by clear, cogent and convincing evidence that a person alleged to be incompetent lacks sufficient capacity to manage his or her own affairs or to make or communicate important decisions about the person’s self, family, or property. The lack of capacity may be due to mental illness, intellectual or developmental disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury, or a similar cause or condition. Showing poor judgment or wastefulness is not necessarily enough to show that a person is incompetent.

What is a “ward”?

A “ward” is an adult who has been adjudicated incompetent or an adult or minor for whom a guardian has been appointed by a court.

Who are the “petitioner” and the “respondent”?

The petitioner is a person who files a petition with the court alleging that an adult lacks capacity to manage his or her affairs or to make and communicate important decisions about his or her self, family, and/or property and requesting that a guardian be appointed. The respondent is the adult who is alleged to be incompetent, and who will become a ward if the clerk determines that he or she is in fact incompetent.

What are Principles of Guardianship?

The following principles have been recognized and incorporated by statute:

• Guardianship should be considered only when less intrusive alternatives are not appropriate and if it will give an individual a fuller capacity for exercising his or her rights.
• Guardianship should seek to preserve opportunities for the individual to exercise rights that are consistent with his or her capabilities, allowing for the possibility of error to the same degree as is allowed to persons who are not incompetent.
• A person under guardianship should be involved in all decision making consistent with his or her capabilities.

What rights do incompetent adults lose?

An adult ward may lose many of the rights that adults otherwise have, though it is possible for a ward to retain certain rights and privileges through a limited guardianship. The guardian may have the authority to decide where and with whom the ward lives, what medical treatment the ward receives, how to handle the ward’s money and property, how to resolve legal claims or court cases in which the ward is involved, and whether to enter into contracts on the ward’s behalf. A ward may lose the privilege to drive, the right to file a court case independently, or the right to enter into contracts, among other rights. A ward loses the right to serve on a jury, possess or purchase firearms, and execute powers of attorney. A ward who wishes to keep his or her driving privilege can request a hearing with the Department of Motor Vehicles and show evidence that he or she should be permitted to drive.

What rights do incompetent adults keep?

Incompetent adults have the right to participate in decisions affecting them and make decisions to the extent they are able to do so. Incompetent adults have the right to vote and the right to marry. Under some circumstances, an incompetent adult may be able to make a will. Powers of attorney executed after a person is adjudicated incompetent and while under a guardianship are not valid. Incompetent adults have the right to file motions or appeals in their guardianship cases and have the right to be represented by an attorney or guardian ad litem in these proceedings.

What are “limited guardianships”?

In a limited guardianship, an adult ward retains some rights that would otherwise be lost in guardianship. North Carolina law encourages clerks to consider limited guardianships tailored to the needs of the incompetent person.

What are the different types of guardianship in North Carolina?

Guardianships can be classified by the powers of the guardian. In the clerk of superior court’s order appointing a guardian(s), the powers and duties of the guardian(s) are outlined. Powers and duties of Guardians of the Person are outlined in G.S. §35A-1241(a). Powers and duties of Guardians of the Estate are outlined in G.S. §35A-1251 and 1253. General Guardians have the powers of both a Guardian of the Person and a Guardian of the Estate. Each of these types of guardianships should be limited to meet the specific needs of the ward, as appropriate.

Who decides guardianship cases?

Competence and Guardianship proceedings are handled by the clerk of superior court or an assistant clerk of superior court, who presides over the hearings and makes all decisions in the case. The respondent or guardian ad litem may request a jury to decide the issue of competence, but if the respondent is determined to be incompetent, only the clerk can decide who will serve as guardian. Decisions on competence and guardianship can be appealed to superior court.

What if someone needs emergency protection?

Every North Carolina county has a Department of Social Services, providing Adult Protective Services, which investigates allegations of abuse, self and caretaker neglect, and exploitation of adults who are disabled, meaning they cannot complete daily activities or handle their affairs or protect interests and are unable or unwilling to obtain essential services themselves. North Carolina law requires any person having reasonable cause to believe that a disabled adult is in need of protective services to report such information. Contact information for county Departments of Social Services and for reporting can be found here.

If a person is a danger to him- or herself or others due to mental illness or substance abuse, a petition can be filed with the magistrate in the person’s county of residence for involuntary commitment to a medical facility.

Upon the filing of a verified petition for adjudication of incompetence, a motion may be filed requesting the appointment of an interim guardian. See below for more information.

Who can file a petition to have someone found incompetent?

Any person, including a relative, friend, medical provider, or any State or local human services agency, through an authorized representative, can file a verified petition with the court. The petitioner is responsible for presenting evidence at the hearing to prove by clear, cogent and convincing evidence that the respondent is incompetent, which may include subpoenaing witnesses to testify.

Can the adult guardianship process be initiated prior to a minor turning age 18?

Yes. A petition for adjudication of incompetence may be filed when a minor is at least 17 ½ years old.

Where is a petition for adjudication of incompetence filed?

Petitions for adjudication of incompetence are filed in the special proceedings division in the clerk of superior court’s office. The clerk of superior court can give you a copy of the petition, or you can find it online here. The petition must be verified under oath in front of a clerk or a notary public. A party may file a petition with the clerk of superior court in the county where the respondent resides or is domiciled or is an inpatient in a treatment facility as defined in G.S. 122C-3(14), which includes group homes, halfway houses, and other community-based residential facilities. If the county or residence cannot be determined, the petition may be filed in the county where the respondent is present. Note: In order for a court to have jurisdiction in an incompetency proceeding, the court must have subject matter jurisdiction pursuant to N.C. G.S. § 35B.

What information is needed to file a petition?

Basic identifying information about the respondent is necessary to complete a petition. Additional information required includes where the respondent has lived for the past 12 months; facts tending to show that the respondent is incompetent and reasons to show why the adjudication of incompetence is sought; names and contact information for the respondent’s next of kin and other persons known to have an interest in the proceeding; information about the respondent’s assets, liabilities, and income; and information about the respondent’s ability to manage various aspects of daily life. On the court petition form, a specific person or an agency may be recommended as guardian. However, there is no requirement to recommend a guardian. Upon adjudication, if a qualified guardian is not available to serve, the clerk may appoint a corporation authorized to serve as a guardian by its charter or a county Department of Social Services.

What is the filing fee?

There is a $120 filing fee, as well as a $30 fee for the sheriff to serve the respondent with the petition. The clerk of superior court determines who is responsible for payment of fees and costs. The filing fee and sheriff’s service of process fee may be required at the time of filing. If the respondent is adjudicated incompetent and is indigent, meaning that he or she is unable to pay court fees and costs, then the clerk of superior court can waive the court costs. However, if the clerk finds that the petitioner did not have reasonable grounds to bring the case, the petitioner may be required to pay all costs, including fees for the guardian ad litem and any multidisciplinary evaluation that is ordered.

Who has to be served in an incompetency proceeding?

The respondent must be served personally by sheriff. At the time of filing, the clerk will appoint a guardian ad litem, who must also be served pursuant to G.S. 1A-1, Rule 4, Rules of Civil Procedure. The petitioner is responsible for mailing via first class mail a copy of the petition and notice of hearing to the respondent’s next of kin who are listed in the petition and any other persons the clerk may designate within 5 days after filing the petition. The petitioner must certify that this service was completed and may use this form.

Can the petitioner get a court-appointed attorney?

No. Parties may hire their own attorneys. Court officials, such as judges and clerks of court, cannot provide parties with legal advice about their rights and obligations or the likely outcome of a case. A petitioner representing his or herself in court will be held to the same rules of civil procedure and evidence as a licensed attorney.

When will the hearing be held?

The hearing will be held between 10 and 30 days after the respondent is personally served with the petition, unless the clerk extends the time for good cause, for preparation of a multidisciplinary evaluation, or for the completion of a mediation.

There is an immediate need for a guardian. Is there a way to have a quicker hearing?

The petitioner or guardian ad litem attorney may file a verified motion for the appointment of an interim guardian. The petitioner or guardian ad litem attorney may file the motion at the time the petition is filed using the petition form here or after the filing of the petition using this form. The hearing will be held as soon as possible, but no later than 15 days after the respondent has been served with the motion and notice of hearing. A clerk can also appoint an interim guardian on his or her own motion at the hearing on the petition for adjudication of incompetence if the clerk finds this to be in the respondent’s best interest.

What happens if an interim guardian is appointed?

The clerk of superior court or an assistant clerk will hold a hearing to decide whether an interim guardian should be appointed and what the interim guardian’s responsibilities should be. If the clerk appoints an interim guardian, the clerk’s order will limit the interim guardian’s powers and duties based on the immediate needs of the respondent. The interim guardianship terminates upon the occurrence of one of the following: (1) on a date specified by the clerk, (2) at the expiration of 45 days, (3) when a guardian is appointed, or (4) when a case is dismissed. For good cause, the clerk may extend the interim guardianship for an additional 45 days. An interim guardian with authority related to the respondent’s estate is required to post a bond in an amount determined by the clerk and file an account with the clerk.

What is the role of the Guardian ad Litem (GAL)?

When a petition is filed, the clerk of court will appoint an attorney as guardian ad litem (GAL) to represent the respondent in the hearing. The guardian ad litem will visit the respondent as soon as possible and try to determine the respondent’s wishes. The guardian ad litem is responsible for presenting the respondent’s wishes to the clerk during the hearing, and the guardian ad litem may also make a recommendation to the clerk about the respondent’s best interests.

Can the respondent hire an attorney?

Yes. The respondent can choose to hire his or her own attorney. If the respondent hires an attorney, the clerk may release the guardian ad litem.

What is a Multidisciplinary Evaluation (MDE)?

A Multidisciplinary Evaluation (MDE) is an evaluation that the clerk can order, if requested in writing by a party or on the clerk’s own initiative, in initial incompetency or restoration to competency proceedings. This can include medical, psychological, social work, education, vocational rehabilitation, and occupational therapy evaluations of the respondent.

What happens at an incompetency hearing?

At the hearing, the petitioner and respondent are allowed to present testimony and documentary evidence, to subpoena witnesses and the production of documents, and to examine and cross-examine witnesses. The petitioner is responsible for proving that the respondent is incompetent by clear, cogent and convincing evidence. The North Carolina Rules of Civil Procedure and Rules of Evidence apply to these proceedings.

Does the recommended guardian need to be at the hearing?

Yes. Anyone who wishes to be considered as guardian should be present at the hearing. The clerk may ask questions of any potential guardian(s) to determine who is most suitable to serve as guardian(s).

When will the clerk make a decision?

The clerk may announce his or her decision at the end of the hearing, may order a multidisciplinary evaluation to be completed before making a decision, or may make a decision after the hearing.

How does the clerk decide who to appoint as guardian?

The clerk makes this decision based on the best interests of the ward. The order of priority for appointment that a clerk must consider is: (1) an individual recommended under the will of the deceased parent of an unmarried child adjudicated incompetent, (2) an individual, (3) a corporation, and (4) a disinterested public agent, such as a county Department of Social Services.

Can the clerk’s decision be appealed?

A party may appeal in writing within 10 days of the clerk’s decision. There is not a court form available for this. If a party appeals the decision on the issue of competence, there will be a new hearing before a superior court judge. If a party appeals the decision of choice of guardian, there will be a review hearing before a superior court judge. There is no court fee or bond assessed to file a notice of appeal. If the clerk of court appoints a guardian, the guardianship will stay in place during the appeal, unless the court issues a stay of the order.

What happens when a ward no longer needs a guardian?

Any interested person, including the ward, the guardian, or a third party, may file a motion in the cause for restoration to competency.

What is the process for filing for restoration to competency?

A verified motion in the cause for restoration to competency is filed with the clerk of superior court in the special proceedings division in the county where the guardianship case is located. The Motion for Restoration to Competency form can be found here and the accompanying Notice of Hearing here. These documents must be served either by the sheriff, certified mail, or other means in accordance with provisions of G.S. 1A-1, Rule 4 on the guardian, the ward, and any other party to the original case, such as the person who filed to have the ward adjudicated incompetent.

What happens after the motion is filed?

The ward is entitled to be represented by counsel or guardian ad litem attorney. Upon motion of a party, or upon the clerk’s own motion, a multi-disciplinary evaluation may be ordered. The respondent, his or her counsel or guardian ad litem may request a jury trial. A hearing will be scheduled, where the clerk of court or jury, if requested, will decide the case.

What happens at the hearing?

The person who filed the motion must prove by a preponderance of the evidence that the ward is now able to manage his or her own affairs and to make and communicate important decisions about him or herself and his or her family and property. All of the parties, including the ward and the guardian, will have the opportunity to testify, call witnesses, and present documentary evidence.

What are the possible outcomes from the hearing?

The clerk may fully restore the ward’s competency or deny the motion and leave the guardianship in place. The clerk may also limit the guardianship by granting the ward new rights and privileges while keeping the guardianship in place.

What happens when a person’s competency is restored?

When a person’s competency is restored, he or she is able to manage his or her own affairs and exercise all rights as if he or she were never adjudicated incompetent and will no longer have a guardian. However, a person whose competence is restored does not automatically regain the right to purchase, possess, or transfer a firearm.

Can the clerk’s decision be appealed?

The clerk’s decision can be appealed in writing within 10 days after the written order is entered for a new hearing before a superior court judge. There is no court form available to file a notice of appeal. The guardianship will stay in place pending the appeal.

Can a guardian be appointed for a minor?

A guardian may be appointed for a minor under certain circumstances. Minors, because they are legally incompetent to transact business or give consent for most purposes, need responsible, accountable adults to be responsible for their personal welfare, for personal decision-making, and to handle property or benefits to which they are entitled.

When can the court appoint a guardian for a minor?

A court may appoint a guardian of the estate for a minor (under age 18), pursuant to Art. 6 in G.S. 35A, who is to receive property, such as an inheritance, life insurance proceeds, or an award from a lawsuit. A court may appoint a guardian of the person or a general guardian if both of the child’s parents are either deceased or have had their parental rights terminated in a court proceeding.

Where is an application for appointment of a minor (under age 18) filed?

An application for the appointment of a minor may be initiated by completing this form under oath and filing it in the estates division with the clerk of superior court in the county where the child lives. Basic identifying information about the child is required as well as information about the child’s parents and others with an interest in the guardianship, such as relatives or custodians, and information about the child’s assets.

What happens after an application is filed?

The clerk of court will set a date for a hearing on the guardianship once the application is filed. Copies of the application and a notice of hearing must be served on any parent, guardian or legal custodian of the minor other than the applicant, and on any other person the clerk may direct, including the child. Parties may waive their right to notice of the hearing.

Will a guardian ad litem be appointed for the child?

Possibly. The clerk of court may choose to appoint a guardian ad litem, depending on the circumstances. The guardian ad litem will visit the child, learn about the family, and make a recommendation to the clerk.

What happens on the hearing date?

The hearing may be held in a courtroom, a conference room, or an office. The clerk of superior court or an assistant clerk will conduct the hearing. The applicant will be allowed to testify under oath and present evidence, including witnesses and documents. Other interested parties, such as family members who dispute the guardianship, may be allowed to testify and present evidence. If a guardian ad litem was appointed, he or she will make a recommendation to the clerk.

Can a decision in a minor guardianship be appealed?

Notice of appeal must be filed within 10 days of entry of the clerk’s written order. An appeal hearing is not a new trial, but allows a superior court judge to review whether the record shows any error by the clerk.

How does a guardian “qualify”?

The appointed guardian must take an oath to uphold his or her duties. Guardians who will have control over the ward’s assets and property, and some non-resident guardians, must file a bond approved by the clerk before receiving their authority. Certain individuals may be disqualified by statute to serve.

What are the duties of a Guardian of the Person?

If the clerk of court does not provide for more limited duties through a limited guardianship, a guardian of the person has broad responsibilities for the care and custody, and maintenance of the ward. Those responsibilities may include providing for the ward’s everyday needs, establishing the ward’s home, maintaining the ward’s personal property such as clothing or vehicles, and arranging for the ward’s education, employment or rehabilitation. The guardian of the person may consent to medical or psychological treatment for the ward, unless the ward previously appointed someone else to make these decisions through a health care power of attorney. The clerk shall consider whether a limited guardianship is appropriate. You can view all the powers and duties of a guardian of the person here. You can find additional information prepared by the North Carolina Administrative Office of the Courts here.

Are status reports required of a Guardian of the Person?

All public guardians are required to file status reports under oath or affirmation with the court, and the clerk of court may require these reports from all guardians. Status reports are not available to the general public. Information required in status reports can be viewed here.

What reports are required of a Guardian of the Estate?

A guardian of the estate or general guardian must file an inventory of the ward’s assets within 3 months after qualification and must file an annual account each year regarding the status of the ward’s property and money received and paid.

What are the duties and requirements of a General Guardian?

A general guardian has all the duties and accounting requirements of both a guardian of the person and a guardian of the estate.

Does a guardian have the authority to sell real estate owned by the ward?

A guardian of the estate or general guardian must file a verified petition with the court for approval to sell real property. This is a complicated process that requires court approval. An attorney can assist with this process.

How can a guardian be removed or replaced?

Any person can file a motion to modify a guardianship, including a motion to remove a guardian. The clerk will hold a hearing on the motion and decide if any changes are in the ward’s best interests. The clerk can remove the guardian if he or she is unsuitable, for instance, if the guardian wastes or mismanages the ward’s property or takes it for the guardian’s own use, does not file required accountings, or neglects to care for the ward. You can find a full list of circumstances that require removal here.

What if a guardian is no longer able to serve?

A guardian can file a motion to modify asking to resign as guardian, and the court can appoint a new guardian.

Can a guardian’s duties or a ward’s rights be changed?

Yes. A party can ask the clerk to change a guardian’s duties or a ward’s rights by filing a motion to modify.

What if the ward moves to another county in North Carolina?

A party may request the transfer of the guardianship to the county where the ward now lives, or the court may transfer the guardianship on its own initiative.

Can a guardianship be registered in additional states?

Yes. You may wish to register a guardianship if the ward spends some of his or her time or receives medical treatment in a state other than the one where the guardianship was created. If you currently have guardianship in another state and wish to register that guardianship in North Carolina, you can do so using this form.

Is it possible to transfer an adult guardianship from one state to another?

Yes. Procedures for transferring adult guardianships to or from North Carolina are governed under G.S. 35B-30 and 35B-31. To initiate a transfer of guardianship from North Carolina to another state, you must first petition North Carolina for a transfer and may use this form. To transfer guardianship from another state to North Carolina, you must first request a provisional order of transfer from the other state. Once you have received that order, you can petition North Carolina to accept the transfer of guardianship using this form.

What is a lawsuit?

A lawsuit is a claim or dispute brought to a court of law to resolve.

What is the difference between civil and criminal cases?

Criminal cases deal with violations of the criminal law, such as assaults or theft. Criminal cases are usually brought by law enforcement and are managed by a prosecutor, an attorney who represents the government. A person found guilty in a criminal case faces consequences such as jail time, probation, or fines. See the Criminal Cases Help Topic for more information. On the other hand, civil cases deal with a wide variety of private disputes, from breach of contract to child custody. In civil cases, one party may have harmed or failed to abide by its obligations to another, or two parties may have a dispute for the court to resolve. Civil cases can result in an award of money or in a court order to enforce or protect the rights of a party.  

What is the difference between District Court and Superior Court?

North Carolina’s trial court system has two divisions: District Court and Superior Court. Both divisions are generally located in the same courthouse in each county, but have different judges. The Superior Court division handles civil cases involving a claim for more than $25,000, as well as felony criminal cases. The District Court division handles civil cases involving a claim for $25,000 or less, all family and juvenile cases, misdemeanor criminal cases, and infractions such as traffic tickets.

Who are the “plaintiff” and “defendant”?

A “plaintiff” is a person who files a lawsuit. A “defendant” is a person that a lawsuit is filed against. One lawsuit can have multiple plaintiffs and multiple defendants.

What are a “complaint,” “answer,” and “counterclaim”?

A “complaint” is the document a plaintiff files to begin a lawsuit. The complaint states what the plaintiff claims the defendant has done and the remedy that the plaintiff is requesting. Typically, the defendant has 30 days to respond by filing an “answer.” An answer includes the defendant’s responses to the plaintiff’s allegations and any defenses. If the defendant also has a claim against the plaintiff – for instance, if the defendant believes that the plaintiff is actually the person who owes money – the defendant may state his or her own claims in a portion of the answer called a “counterclaim.”

How long do civil lawsuits usually last?

This depends on the type of case, the willingness of both parties to settle the dispute, and the complexity of the evidence and legal issues involved. Many cases filed in small claims court are resolved on the first court date.

Do all civil cases go to trial?

No. Very few civil cases go to trial. Most cases are settled before trial, either through an agreement negotiated by the parties’ attorneys, or through mediation or arbitration. Arbitration is an alternative method of resolving a dispute through an informal legal proceeding that is required in many district court cases. Mediation is a guided conversation that can help parties settle legal disputes themselves. See the Arbitration and Mediation Help Topic for more information.

Are all civil trials before a jury?

No. Parties may have the right to request a jury trial, or the court may hold a “bench trial,” meaning that a judge hears the evidence and decides the case. In some types of cases, such as child support and child custody, all trials are held before a judge.

I want to sue someone. What should I do?

Most people considering a lawsuit begin by contacting an attorney to discuss the case. An attorney can advise you on the possible outcomes of your case and the amount of time and costs involved. See the Find an Attorney Help Topic for more information.

In some cases, you may wish to file your lawsuit on your own in small claims court. The limit on the amount of money a person can request in small claims court varies from $5,000 to $10,000, depending on the county. See the Small Claims Court Help Topic for more information.

eCourts Guide & File is available to help users prepare court documents online to file for Small Claims: Money Owed, Repossession of Personal Property.

Do I have to hire an attorney for a lawsuit?

People can represent themselves (known as proceeding “pro se”), but this can be difficult, especially in complex cases. If you choose to represent yourself, you will be held to the same rules of evidence and procedure as a licensed attorney. Court officials, such as judges and clerks of court, cannot give you legal advice about your rights and obligations, possible claims or defenses, or the likely outcome of your case.

Can I represent my company in court?

Companies are legally required to hire an attorney to represent them. There is an exception for small claims court and appeals from small claims to District Court; in these cases, companies can be represented by a non-attorney agent such as an owner or employee.

Do I have to pay to file a lawsuit?

In general, yes. If you are unable to pay the costs of court, you can ask to file as an “indigent,” meaning that you are not required to pay court fees in advance. You can find the necessary form here.

eCourts Guide & File is available to help users prepare court documents online to file for Petition to Proceed as an Indigent.

How long do I have to file suit?

The amount of time you have to file your lawsuit (known as the “statute of limitations”) depends on the type of case. An attorney can give you more information about the limit in your specific case. You can view the law on statutes of limitations in general here and in cases involving real property (land) here.

Should I file my lawsuit in small claims, District Court, or Superior Court?

Cases for money damages are divided depending on the amount of money involved. Small claims court handles cases where the plaintiff requests less than $5,000 or $10,000, depending on the county’s specific rules. District Court handles the remaining cases where the plaintiff requests $25,000 or less. Superior Court handles cases where the plaintiff requests more than $25,000. All family court cases are heard in District Court. All cases challenging state laws are heard in Superior Court.

What county should I file suit in?

In which county to file your suit depends on a number of factors, including where the dispute arose and where the parties reside. In small claims court, the case must be brought in the county where the defendant lives. There are specific rules for cases concerning land or involving businesses. You can find more information about where cases should be filed here.

Are there standard forms I can use to file a lawsuit?

In general, there are not standard forms in North Carolina to file a lawsuit. Exceptions include complaints for eviction, small claims cases, and Domestic Violence Protective Orders (see the relevant Help Topics).

eCourts Guide & File is available to help users prepare court documents online to file for certain case types.

How do I serve the other party?

The plaintiff is responsible for ensuring that a copy of the complaint is served on the defendant. If you have an attorney, your attorney can handle this for you. In general, service is carried out either by paying the sheriff a $30 fee to personally serve the defendant, by mailing a copy of the summons and complaint to the defendant by certified mail, return receipt requested, or by some other method authorized under Rule 4 of the North Carolina Rules of Civil Procedure. If the defendant cannot be found, the plaintiff may be able to serve him or her through publication in a newspaper, but specific requirements apply. The plaintiff must file with the court proof that the defendant has been served.

Will my case automatically have a trial date?

Most lawsuits are not automatically assigned a trial date, unless your case is on appeal from small claims court. Instead, a plaintiff or defendant who wants the case to be heard must arrange a date with the other party and the Trial Court Coordinator and file a Notice of Hearing. A copy of the Notice of Hearing must be served on the other party as authorized by Rule 5 of the North Carolina Rules of Civil Procedure.

I have just been sued. What do I do?

You should immediately contact a lawyer. You will typically need to file an answer to the plaintiff’s complaint within 30 days. Failure to file your answer in the required time period could result in a judgment being entered against you by default. See the Find an Attorney Help Topic for information about how to find an attorney to represent you in your case.

Will a lawsuit against me go on my criminal record?

Lawsuits are civil, not criminal, and will not appear on your criminal record. However, lawsuits are public record. Some types of cases may appear in some background or credit checks, and an unpaid judgment on record with the court will be reported to credit bureaus.

Are documents filed with the court open to the public?

In general, yes. Except in juvenile, adoption, involuntary commitment and some other proceedings wherein cases or certain court filings are confidential by statute, documents filed in court cases are generally public record. Sensitive or confidential documents may be kept “under seal”, upon request by a party, so that only authorized people can see them. In general, the judge has the authority to decide whether or not to seal the documents.

How can I find my court date?

Some counties post their civil court calendars here. If you are not able to find your court date, you can contact the Clerk of Superior Court’s Office in the county where the case is being handled.

What is a continuance?

A continuance is a postponement of a case or of arguments on a specific issue until a later court date.

What happens if I miss a court date?

This depends on the circumstances. If you miss a trial date, the case could be dismissed (if you are the plaintiff) or heard without you (if you are the defendant). If you have an attorney, your attorney will let you know if there are court dates you do not need to attend, for instance, because the case is scheduled for legal arguments that your attorney will handle for you. If you are unable to attend a court date, you should immediately contact your attorney. With advance notice, you can file a motion to continue the case. A party should review the county court’s local rules prior to filing a motion to continue.

Can I be arrested for not following a court order?

If you violate or choose to not obey a court order, you can be held in contempt of court. Penalties for contempt of court can include jail time and fines. Before you can be arrested, you will receive notice of a hearing (through a Motion for Order to Show Cause, Motion for Contempt, or other formal notice) stating that the other party plans to ask the judge to hold you in contempt of court. You will have the opportunity to present a defense, and you can request a court-appointed attorney if you cannot afford to hire an attorney.

What is discovery?

Discovery is a process in lawsuits that allows parties to legally demand documents and information related to the lawsuit from each other in advance of a trial. Discovery allows the parties to learn more about the facts of the case and expected witness testimony and provides evidence that can be used in trial. Interrogatories, requests for production of documents, requests for admission, and depositions are all forms of discovery. You can view the rules for discovery here. Note that criminal cases have a different process for discovery.

When does discovery happen?

Once the complaint has been filed, either party may serve discovery requests on the other party together with or after service of the summons and complaint without need for permission from the judge.

Does discovery happen in all cases?

No. Discovery happens in cases in which a party or, typically, a party’s attorney, chooses to send discovery requests to the other side. Discovery is often expensive and may not be necessary in some cases, but complex cases typically involve a period of pre-trial discovery.

What is a deposition?

A deposition is a formal questioning of a party or witness by the attorney for the other side. Depositions are sworn testimony, typically taken in person with attorneys for both sides and a court reporter present. Depositions usually happen in an attorney’s office or neutral conference room. A party that wants to take a deposition must send notice to the other side. Witnesses can be required to attend through a subpoena.

What happens if a party receives discovery requests but does not respond?

If a party fails to respond to interrogatories, requests for production, or questions in a deposition, the other party can ask the court for an “order to compel”.  Failure to comply with an order to compel may result in sanctions or payment of attorney’s fees related to obtaining the order.

What is a judgment?

A judgment is a court’s decision about the parties’ rights and obligations in a case, including the amount of money one party must pay the other.

Can the parties to a lawsuit agree on a judgment?

Yes. Parties can sign a “consent judgment.” Once a judge also signs the agreement, this becomes a court order.

If I win my case, can I get the other side to pay my lawyer’s fees?

This depends upon the type of case. There is no automatic right to attorneys’ fees in a civil case. Your lawyer can explain whether you can request attorneys’ fees in your case.

Once a judgment for money owed is entered, how is the judgment satisfied?

Many people reach an agreement about the terms of payment after the judge or jury decides how much money one party must pay the other. If there is no agreement, the winning party can begin the collections process. The clerk of court will record the judgment, and interest will begin to accrue if the judgment is not paid.

• Before a writ of execution can be issued by the clerk of superior court, a Notice of Right to Have Exemptions Designated must be served on certain defendants (judgment debtors), along with a Motion to Claim Exempt Property. This allows a person to protect certain basic property from being seized and sold to pay the judgment. The other party has 20 days after he or she is served to file the Motion to Claim Exempt Property with the court or request a hearing before the clerk of superior court. The clerk of superior court determines whether a defendant is entitled to claim statutory exemptions.
  • eCourts Guide & File is available to help users prepare court documents online to file for Motion to Claim Exempt Property.
• After a Motion to Claim Exempt Property is filed, a plaintiff has 10 days to object to property claimed as exempt. A hearing on any objections is heard in front of a judge, who determines what property is exempt. Once the time period has elapsed allowing an eligible judgment debtor to claim property as exempt, the plaintiff (judgment creditor) may request the clerk of superior court to issue a writ of execution for non-exempt property, which allows the sheriff to collect and sell property from the other party to pay the judgment.

How should judgments be paid?

The person required to pay a judgment can pay the clerk of court to ensure that the court has a record of the payment. Paying the other party is also an option. A party who receives payment directly from the other party should file a Certificate of Payment with the court as proof that the judgment was paid.

What happens if I don’t claim statutory exemptions, if eligible?

If you are not eligible to claim or if you fail to claim statutory exemptions, the plaintiff may request that the clerk of superior court issue a writ of execution, allowing the local sheriff to seize and sell non-exempt property to pay the judgment. You can still claim limited constitutional exemptions using this form. However, constitutional exemptions only allow $1000 in real property (such as land or homes) and $500 in personal property (such as vehicles, furniture, appliances, and other items) to be protected.  Eligible parties who fail to claim statutory exemptions lose the right to protect the additional property provided for by statute.

Can I get legal assistance with a Motion to Claim Exempt Property?

An attorney can assist you in filling out the Motion to Claim Exempt Property. See the Find an Attorney Help Topic for a list of organizations that provide free legal services to people who are unable to afford an attorney.

eCourts Guide & File is available to help users prepare court documents online to file for Motion to Claim Exempt Property.

Can I be arrested for not paying a judgment?

In general, no, you cannot be arrested for failing to pay a money judgment ordered by a court. Exceptions include criminal court fees that you must pay through probation and child support or other family court orders.

Will my wages be garnished to pay a judgment?

No, North Carolina does not allow a winning party to take money to pay the judgment out of the other party’s wages, except in child support cases.

What is a supplemental proceeding?

A supplemental proceeding is a method of enforcing a money judgment that a judgment creditor has not been able to satisfy through execution.

What can I do if I believe the outcome of my case was wrong?

In some limited cases, you can file a notice of appeal and request a new trial. For instance, cases first heard in small claims court can be appealed to District Court, and some cases first heard by clerks of court can be appealed to be heard by a judge. Once a non-criminal case is decided by a district or superior court judge, a new trial is generally not an option and appeals can be filed only to the North Carolina Court of Appeals, and perhaps to the Supreme Court of North Carolina.

How do I file an appeal to the Court of Appeals?

You can begin the process by filing a notice of appeal with the trial court within 30 days of the trial court’s final order. A temporary order before the case is finished cannot be appealed. There is not a standard form for the notice of appeal. It may be necessary to hire an attorney to represent you in an appeal, because successfully appealing depends on following specific rules and making the correct legal arguments. You can view North Carolina’s Rules of Appellate Procedure.

How can I get legally separated in North Carolina?

A separation agreement or other written document is not required to be legally separated in North Carolina. To be considered separated from your spouse, you need to be living in different homes, and at least one of you needs to intend that the separation be permanent. In general, you are not legally separated if your relationship has ended but you still live in the same home, or if you live in separate homes without the intent to be permanently separated (for example, for work purposes).

What is a separation agreement?

A separation agreement is a private contract between spouses who are separated or plan to separate very soon. A separation agreement includes agreed-upon terms dealing with various issues related to the separation, such as which spouse is responsible for certain bills, whether one person will continue to live in the marital home, or where the children will live. A typical separation agreement includes the details of separation, property division, spousal support, and if there are children, child custody and support.

Do I need a separation agreement?

A separation agreement is not required to be legally separated from your spouse. However, a separation agreement can resolve many of the legal issues involved in the end of a marriage. For example, you can decide how to divide your property and whether one of you will pay alimony to the other. In some situations, spouses may request that the separation agreement become part of their final divorce order. Spouses who are able to resolve the issues related to their separation through a separation agreement can make those decisions themselves and avoid the need to go to court.

How do I get a separation agreement?

Separation agreements are generally prepared and negotiated by attorneys, who can tailor the agreement to the needs of your family. See the Finding an Attorney Help Topic for more information about finding an attorney to assist you.

What are the requirements for a separation agreement to be valid?

Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.

Can a separation agreement include decisions about child custody and child support?

Yes, you can include provisions about child custody and child support in a separation agreement. However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest. If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances.

What is a Divorce from Bed and Board?

In spite of the confusing name, a Divorce from Bed and Board (a “DBB”) is not a divorce. A DBB is a court-ordered separation. DBB orders are available only under limited circumstances where the spouse requesting the order can prove serious fault, such as adultery or drug abuse. Once you have separated due to a DBB order, you can still resolve issues related to the separation with a separation agreement, as if the separation had been voluntary. You can also file to ask the court to resolve issues such as property division and post-separation support through the DBB case. Once you are separated due to a DBB order, you will still need to wait one year and file for an absolute divorce to legally end the marriage.

What is post-separation support?

“Post-separation support” is a temporary form of spousal support paid by a supporting spouse to a dependent spouse who is in need of support, after separation but before divorce.

What are the requirements for a divorce in North Carolina?

You are eligible to file for divorce, also called an “absolute divorce,” only after being separated for at least a year and a day. This means that you must have been living in different homes and that at least one of you intended that the separation be permanent during that time. To file for a divorce in North Carolina, either you or your spouse must currently live in North Carolina and must have lived in the state for at least six months before the divorce case is filed.

Does my spouse have to agree to the divorce?

No. As long as you are eligible for a divorce, your spouse does not have to agree to the divorce. If you file for divorce, your spouse does not have to complete or sign any paperwork, file anything with the court, or go to court for the divorce hearing. However, your spouse must receive proper legal notice of the divorce case that you file.

Can I get divorced after less than a year if I prove fault?

No. Unlike some other states, North Carolina only allows for no-fault divorce, which requires at least one year of separation.

What is required for a divorce based on incurable insanity?

This divorce requires that you and your spouse have been living apart for at least three years because of your spouse’s mental health condition, and that your spouse either has been institutionalized during that time or was found “insane” by a judge at least three years ago. This also requires the testimony of two specialty doctors that your spouse is currently “incurably insane.” In this situation, you do not need to show that you have intended for at least one year that the separation be permanent.

What is a “simple divorce”?

A “simple divorce” is an informal term for an absolute divorce in cases where the person filing only wants to be divorced, and is not requesting anything else, such as property division or spousal support.

How do I file for divorce?

To file for divorce, you must file the following documents with the clerk of court in the county where either you or your spouse lives:

1. A complaint, stating the facts of your case and your request for a divorce. The courts do not provide a standard form for the complaint. If you intend to file for property division or spousal support, you must include all supporting facts and your requests in your complaint.
2. A summons.
3. A Domestic Civil Action Cover Sheet.
4. An affidavit pursuant to the Servicemembers Civil Relief Act (SCRA), telling the court whether or not your spouse is in the military. This is intended to protect the legal rights of active-duty service members. You can search military records to find a person’s status here.
5. You must pay the court filing fee. If you are unable to do so, you can apply to file as an indigent using this form.

View the North Carolina Divorce Packet Help Topic for more information.

eCourts Guide & File is available to help users prepare court documents online to file for Absolute Divorce.

How do I serve my spouse after filing the documents?

After filing your case, you must ensure that your spouse is “served” with a copy of your summons and complaint. In general, this means that you must either pay a fee to have the sheriff personally serve your spouse with the documents, or send the documents to your spouse via certified mail, FedEx or UPS. If you mail the documents, you must file proof that your spouse received them with the court. In some circumstances where you are unable to locate the other person, you may be able to serve him or her by newspaper publication, but specific requirements apply. Delivering the documents to your spouse yourself is not legal service.

What happens if I don’t file for property division or spousal support?

If no one files for property division (by filing a claim for “equitable distribution”) before the absolute divorce is final, both parties forever lose the right to ask a court for a property division. If this happens, you keep only the assets that are either titled in your name or in your possession. If you own any property in both names, this property will stay in both names even though you have divorced. The same rule applies to debts.

If no one files for spousal support before the absolute divorce is final, both parties forever lose the right to ask a court for alimony. Because a divorce permanently cuts off the right to equitable distribution and alimony, it is important to contact an attorney to assist you in preserving your rights.

What happens if I don’t file for child custody or child support before divorce?

Child custody and child support claims are not affected by divorce. Parents, regardless of marital status, can file at any time for custody of children under the age of 18. See the Child Custody Help Topic for more information. Similarly, parents can file at any time for child support for children under 18 (or still in high school and under age 20), regardless of marital status. See the Child Support Help Topic for more information.

What if my spouse doesn’t live in North Carolina?

You can get a “simple” absolute divorce in North Carolina no matter where your spouse lives, as long as you live in North Carolina at the time you file for divorce and have lived in North Carolina for the six months immediately before filing. Your spouse must be served with the divorce paperwork no matter where he or she lives, though rules about how to serve your spouse depend on the state or country where your spouse lives. In general, if you both lived in North Carolina during the marriage and your spouse has moved away, you can still pursue other claims against your spouse in North Carolina, including property division and spousal support.

What happens in court at a divorce hearing?

You must schedule a hearing for your absolute divorce in order to go before a judge and to receive the divorce. Simple divorce hearings are usually very quick. On the day of the hearing, you will testify under oath about the facts that show you are eligible to get divorced, and in most circumstances, you will leave court with a copy of your divorce judgment.

What do I need to do to prove that I have been separated for at least a year?

Your truthful testimony to the court, under oath, can prove your separation. You can also present other witnesses or documents. A separation agreement between you and your spouse can be helpful to show the court.

How do I change back to my prior last name after I get divorced?

You can include a request to resume your maiden name in your complaint for divorce and have the name change ordered in your divorce judgment. You can also file an application to resume your former name with the clerk of court. You can find the necessary form here.

eCourts Guide & File is available to help users prepare court documents online to file for Adult Name Change.

What resources can help me file for divorce?

You can find more information about filing for divorce and necessary forms here. You can watch one of Legal Aid of North Carolina’s clinics, designed to help people file for divorce on their own.

eCourts Guide & File is available to help users prepare court documents online to file for Absolute Divorce.

What is equitable distribution?

Equitable distribution is a legal claim for property division, in which a spouse can ask the court for assistance in dividing the assets and debts acquired during the marriage.

What property can be divided in equitable distribution?

In North Carolina, “marital property” can be divided between the parties, while “separate property” is not divided. In general, assets or debts either spouse had before the marriage are “separate property” belonging to that spouse, and will not be divided. However, a spouse may have some claim to an asset based on active increases in value during the marriage. Assets and debts you acquired during the marriage are generally classified as “marital property” (exceptions include inheritances and gifts that either of you received from a third party during the marriage). A third category, called “divisible property,” applies to property obtained between separation and divorce. Divisible property may be divided between the parties depending on the circumstances.

How can I file for equitable distribution?

You can file a complaint requesting equitable distribution, in which you may also include other requests, such as alimony, child custody, child support, and/or divorce. If your spouse files a complaint against you, you can file your claims in an “answer” (the document filed with the court in response to a complaint). There is not a standard form to file for equitable distribution, and the process is often complicated. Some counties have local rules requiring specific information to be provided at particular times in the court case. You may contact an attorney to assist you with an equitable distribution claim.

Is marital property always divided 50/50?

Not always. North Carolina law presumes that an equal (50/50) division of marital property is “equitable,” or fair. However, the law provides for many factors that allow for an unequal distribution of property, in situations where an equal division would not be fair.

What will the judge consider in deciding how to divide property?

By law, an equal division of marital property is preferred, but if either spouse requests an unequal division and the judge finds that an unequal distribution would be fair, the court may give more of the property or debt to one party than the other. Judges consider many factors in deciding how to divide property. These factors include the incomes, property, and debts of both parties; the parties’ ages and health; the length of the marriage; the contributions of each party to the other’s earning power; the tax implications; and more. Marital misconduct is not a factor in equitable distribution except in cases of financial misconduct after separation. You can see the entire list of factors here.

What is alimony?

Alimony is support paid by one spouse to the other, usually starting after divorce.

Who is entitled to alimony?

“Dependent spouses” are entitled to receive alimony from “supporting spouses.” A dependent spouse is someone who is financially dependent on and in need of support from their spouse, who is then known as the supporting spouse. Husbands and wives can both be either “dependent” or “supporting” spouses.

How much alimony does a dependent spouse receive?

There are no guidelines or formulas in North Carolina law to determine how much alimony a dependent spouse should receive. Instead, the judge determines how much alimony is appropriate after hearing the facts of the case.

How long does alimony last?

There are no guidelines or formulas in North Carolina law to determine how long alimony should last. Instead, the judge decides this depending on the facts of the case. Regardless of the time period initially set by the judge, alimony ends if the dependent spouse remarries or moves in with a new romantic partner, or if one of the parties dies.

What will the judge consider in deciding whether to grant alimony?

By law, judges consider many factors in deciding whether to grant alimony, including how much each party earns and is capable of earning; the age, education, and health of both parties; the length of the marriage; the parties’ property, contributions during the marriage, and needs; marital misconduct; and more. You can view the entire list of factors here.

How does cheating affect alimony?

North Carolina law provides that “illicit sexual behavior” will affect alimony. A dependent spouse who cheated on the supporting spouse before separation loses the right to alimony. A supporting spouse who cheated on the dependent spouse before separation will be forced to pay alimony. If both parties cheated on each other during the marriage, the judge has discretion to decide whether to order alimony. An exception applies if the cheating was “condoned,” or forgiven, by the other spouse.

Can bad actions other than cheating affect alimony?

Yes. Judges also consider other forms of marital misconduct, which include abandonment, cruel treatment, financial misconduct, alcohol or drug abuse, and involuntary separation if one of the spouses is imprisoned. The entire list of behavior defined as marital misconduct can be seen here.

Does alimony count as income?

Beginning on January 1, 2019, and affecting alimony granted through a separation agreement signed after that date or a court order entered after that date, alimony is no longer included in the calculation of a dependent spouse’s gross income.

What happens if my ex-spouse doesn’t follow our court order?

If the other party does not follow a court order, you can file a Motion for Contempt and/or a Motion for Order to Show Cause, in which you tell the court what part of the order is being ignored and ask the judge to hold that person in contempt of court. If the judge finds that the other party violated the order, the judge will decide the appropriate penalty. Penalties for contempt of court can include a verbal reprimand, a fine, jail time, or requiring the party in contempt to pay the other party’s attorney’s fees. An attorney can assist you with this process.

What happens if my ex-spouse doesn’t follow our separation agreement?

If your separation agreement was included in a court order, such as your divorce decree, you can ask the court to hold the person in contempt of court (see above). If not, you can enforce your separation agreement by suing your former spouse for breach of contract. An attorney can assist you with this process.

What is an expunction?

An expunction is a legal process to remove a criminal conviction or a criminal charge from a person’s record and to seal or destroy the state’s records of the arrest, charge, and/or conviction. A person who has had an expunction granted generally cannot be found guilty of perjury if he or she denies that the arrest, charge, or conviction ever happened. However, an expunction might not provide relief from all consequences of the charge or conviction; for example, an expunction might not prevent the expunged case from being used for federal immigration decisions. You can view the statute (law) that describes the effects of expunctions here and the statutes under which expunged information can be accessed here and here.

North Carolina also allows the expunction of certain records of juvenile delinquency, but that process is different from expunction of adult criminal charges and convictions. You can read more about juvenile expunction in the Juvenile Delinquency Help Topic.

What is the difference between an “expunction” and “expungement”?

“Expunction” and “expungement” mean the same thing. North Carolina’s expunction statutes use both terms interchangeably.

Who is eligible for an expunction?

There are numerous expunction statutes in North Carolina. Some allow the expunction of only specific types of offenses, like drug possession. Other statutes allow expunction of a broader range of offenses but for a smaller group of people, like persons who were under 18 or 21 at the time of the offense. Still others depend on how the charge ended; for example, there are statutes that address expunction of convictions and statutes that address expunction of charges that were dismissed or for which the defendant was found not guilty. The table below lists the statutes that govern expunction, their titles (which describe briefly the kinds of cases eligible for expunction under that statute) and provides links to the Administrative Office of the Courts’ petition forms and instruction sheets for each type of expunction. The full text of these statutes is available here.

Statute (N.C.G.S.)	Records to Which Statute Applies
15A-145(a)	Misdemeanor convictions
15A-145.1	Gang offenses
15A-145.2(a)	Drug offenses dismissed after conditional discharge under G.S. 90-96(a) or (a1)
15A-145.2(b)	Drug offenses, dismissed or defendant acquitted
15A-145.2(c)	Drug or drug paraphernalia convictions
15A-145.3(a)	Toxic vapors offenses dismissed after conditional discharge under G.S. 90-113.14(a) or (a1)
15A-145.3(b)	Toxic vapors or drug paraphernalia offenses, dismissed or defendant acquitted
15A-145.3(c)	Toxic vapors convictions
15A-145.4	Nonviolent felony under age 18
15A-145.5	Nonviolent felony(ies)
15A-145.5	Nonviolent misdemeanor(s)
15A-145.6	Prostitution offenses
15A-146(a) or 15A-146(a1)	Criminal charge (or alcohol infraction before 12/1/1999),dismissed not pursuant to deferred prosecution or conditional discharge (effective 12/1/2014)
15A-146(a) or 15A-146(a1)	Criminal charge (or alcohol infraction before 12/1/1999),dismissed pursuant to deferred prosecution or conditional discharge (effective 12/1/2014)
15A-146(a2)	Criminal charge (or alcohol infraction before 12/1/1999), with finding of not guilty or not responsible
15A-147(a)	Identity Theft - not guilty dismissal or charge set aside by court
15A-147(a1)	Dismissal of charges resulting from identity theft or mistaken identification
15A-148	DNA records upon appellate reversal of conviction or upon pardon of innocence
15A-149	Conviction after pardon of innocence

What if I have more than one conviction?

Some expunction statutes allow for the expunction of multiple charges or convictions, but others do not. And sometimes, one charge in a case might be eligible for expunction, while a different charge in the same case is not. An attorney can advise you about your eligibility for expunction of multiple charges or convictions.

When can I file for an expunction?

Some of the expunction statutes allow you to petition the court for expunction almost immediately after the case is over, for example, when the charges all are dismissed. Others require waiting periods, like a number of years or upon the completion of any sentence (including the final expiration of a period of probation or post-release supervision/parole). Each statute listed in the table above describes the waiting period or conditions that must be met before petitioning for expunction under that statute. If you have questions about the waiting period or your eligibility under a particular statute, you should consult an attorney for advice.

What if I am eligible for more than one type of expunction?

For some charges and convictions, it is possible that more than one expunction statute might apply. However, there are different advantages and disadvantages to petitioning under one statute versus another. For example, if you are granted an expunction under certain statutes, that expunction will bar you from receiving a future expunction under other statutes. Other expunction statutes don’t impose that bar and therefore might be a better choice for filing your petition. If you think that you may be eligible for expunction under more than one statute, you should contact an attorney for advice and assistance.

Where can I find more resources about expunctions?

You can find additional information, including information about eligibility requirements, from the University of North Carolina School of Government.

How can I file for an expunction?

You can find the necessary forms online. Links to the petition forms for each type of expunction (and generally an instruction sheet for each petition) are provided in the table above. Some expunctions require additional documents, such as affidavits of good character from people who know you; when required for a particular expunction, those additional documents are covered in the instruction sheets.

Where should I file for an expunction?

A petition for expunction should be filed with the clerk of court in the county where you were charged or convicted.

What is the process for filing for an expunction?

The exact process is slightly different for each expunction statute. The general process is covered on the instruction sheet for each petition. Note that there might be some local differences in procedure from one county to the next, so the clerk of superior court can tell you if there are any local practices for steps like obtaining a judge’s signature for requesting criminal record checks (required for several types of expunction) or scheduling a hearing.

Do I have to pay to file for an expunction?

There is generally a $175 filing fee to petition for expunction. A few expunction statutes do not require a fee, like expunction of charges that were dismissed or ended in a “not guilty” verdict, unless the dismissal was based on the completion of a diversion program or deferred prosecution agreement. If you cannot afford to pay the fee, you can ask to file without paying the fee by using this form.

Will I have to testify in court?

For some expunctions, the judge will hold a hearing to determine whether you have “good character.” For other types of expunctions, such as expunctions of dismissed charges, the judge might decide without a hearing, based on a review of your record. The clerk of court can tell you any local procedures for scheduling a hearing.

How long does the expunction process take?

Expunctions may take several months, depending on the time required for criminal record checks and to schedule a hearing.

What can I do if my expunction was denied?

In some cases, you may be able to appeal the court’s decision. You should contact an attorney as soon as possible, if you are considering an appeal, because there might be a short deadline in which to do so.

What if I am still seeing information about my charge or conviction after my expunction was granted?

If information regarding your charge or conviction is still available through North Carolina court system sources a few weeks after your expunction is granted, you can contact the clerk of court’s office for the county where the expunction was granted. If information is available through private sources, such as websites that compile criminal record information, you will have to contact those sources directly with information about your expunction. An expunction does not automatically remove information about the charge or conviction from all private sources.

Will I receive a copy of my expunction order? Can I get a copy at a later date?

When a judge signs an expunction order, the clerk of court will provide you with a copy of the order. You cannot get a copy of an order granting an expunction later because the clerk of court and other government entities receiving notice of the expunction destroy all files related to the criminal process, including the expunction order itself. If your expunction petition was filed on or after December 1, 2017, you can request a certificate verifying a prior expunction. You can make the request of the North Carolina Administrative Office of the Courts by mail using this form, but you will need to swear to the application on that form before a notary or court official authorized to administer oaths before sending it to the AOC. You may also use eCourts Guide & File for the application.

Do I need an attorney to file for an expunction?

You can file for an expunction on your own, but an attorney can help you by assessing your eligibility, making sure you include all necessary documents, guiding you through the process, and representing you in a hearing, if needed. Court officials, such as judges and clerks of court, cannot provide you with legal advice about your eligibility. If you represent yourself in court, you will be expected to follow the same rules of procedure and evidence as a licensed attorney.

Can I get a court-appointed attorney to help me with an expunction?

No, court-appointed attorneys are not available to help with expunctions.

How can I find an attorney to help me with an expunction?

Legal Aid of North Carolina is a statewide nonprofit organization that assists some people with expunction cases. You can apply for Legal Aid representation by calling 1-866-219-5262 or by applying online. See the Finding an Attorney Help Topic for additional organizations that assist with expunctions and information about hiring a private attorney.