What is absolute divorce? In a nutshell, absolute divorce means the legal dissolution of a marriage. It is the final step in the divorce process and is typically obtained after a court makes a judgment that all of the legal requirements for divorce have been met. A divorce is not official, and remarriage is not possible, until an absolute divorce has been granted.
Historically, most states, including North Carolina, required some showing a fault for a divorce would be granted. Generally, this meant that one or both spouses engaged in some sort of m misconduct which would serve as the “justification” for the divorce. Today, this is no longer the case.
Today, those who live in North Carolina can obtain what is called a “no-fault” divorce. In its simplest terms, this means exactly what it sounds like – neither party is blaming the other for any sort of misconduct, but rather the parties are simply stating that for whatever their reasons may be, they no longer want to remain married. Let’s take a closer look at the requirements for obtaining a no-fault divorce together.
A Closer Look at the Requirements for No-Fault Divorce in North Carolina
In North Carolina, there are two grounds for an absolute divorce. The first, for most couples, can be eliminated fairly quickly as an option. Although very seldomly relied upon as a ground for divorce, if the spouses have been living apart for three years due to the incurable insanity of one spouse, an absolute divorce may be granted. Claiming incurable insanity will require evidence provided by mental health experts and can be a difficult claim to prove. This basis for absolute divorce is rarely used, but it is worth noting in the unlikely event that occurs.
The second ground for absolute divorce is the one typically relied upon by most couples. According to North Carolina law, a divorce may be granted upon the application of either spouse if the following requirements have been satisfied:
- Residency: In North Carolina, the term “residence” generally means that the individual must be physically present in the state and have the intent to make a home in North Carolina and to live there permanently and indefinitely. Temporarily leaving the state will not interrupt residency, as long as the resident returns and intends to remain living in the state. Residency must be established before filing for divorce – an individual can’t file first and later seek to become a resident. To be a “resident” for purposes of obtaining a divorce, a person does not have to be a citizen of the United States. In addition, out-of-state students and military personnel can also establish residency as long as they fulfill the requirements of considering North Carolina to be the “home” where they intend to reside and stay indefinitely.
- Separation: To file for an absolute divorce, the parties must be able to establish that they have been living separately for at least one full calendar year before filing. Often, particularly during difficult economic times, couples want to know if living in the same house constitutes a legal separation, provided that they do not sleep together or otherwise engage in a romantic relationship. Generally, the answer is no. Courts do not consider living in the same residence but sleeping in separate bedrooms to be sufficient to satisfy the separation requirement. It is therefore best for each spouse to have his or her own separate residence. It’s also important to keep in mind that if for any reason the couple resumes living together or resumes having an intimate relationship, the one-year time period may start over. Ultimately, it is important that the couple prove they are separated, living in separate residences for at least a year, and that at least one spouse has the intention to remain permanently separated. Usually, testimony by one or both parties that they have lived separately for at least a year will be sufficient to move forward, provided that one party does not contradict the other. In cases where it is questionable, proof that the parties lived in two separate residences may be needed.
This is essentially all that is required for a “no-fault” divorce. No spouse is required to prove marital fault as long as they have met the requirement of residence and living separately for one year. After the residency and separation requirements have been satisfied, the process of seeking an absolute divorce may begin.
A General Overview of the Divorce Process
All divorce cases begin with the filing of a complaint. A divorce complaint may be filed as soon as the first day after the full year of separation runs. The complaint for an absolute divorce will be filed in district court in the county in which either the plaintiff or the defendant resides. If the plaintiff is not a resident then the action will usually be filed in the county of the residence of the defendant. After the filing of the complaint by one spouse, the other spouse will be served and allowed to file an answer. At that point, the case will officially be underway.
During the divorce process, once the case is underway, the parties will engage in the discovery process. This essentially means that they will ask questions of one another regarding important matters in the case, and exchange and review pertinent evidence. This process is important to thoroughly understanding the matters at issue between the parties, and thinking through how those issues might be resolved.
After the discovery period, the couple will usually engage in settlement negotiations. Typically, these negotiations take place almost entirely outside of a courtroom. Couples will use methods like mediation, collaborative law, and lawyer-led settlement negotiations to try and resolve their issues, and ideally, to draft a divorce settlement agreement that includes solutions that work well for both parties. If they can do so, they will need only submit their agreement to a court for approval, and at that point, it will become binding on the parties.
In some circumstances, however, a couple is unable to resolve their issues outside of a courtroom. In those situations, a judge will be responsible for deciding the issues. The couple will present their evidence to the court and make their arguments to the court on the issues that need to be resolved. The court will hear the arguments between the parties, review the evidence, and make decisions on all matters that need to be resolved. At that point, the decision will become binding upon the parties. They will be required to follow its directives unless it is later modified by the court.
It is important to understand that once these issues are addressed and a judge signs a final divorce judgment, the parties are barred from revisiting issues like property division and debt allocation. As a result, it is important to think through and resolve those issues thoroughly before your divorce.
In addition, although issues of child custody, and support may be revisited, and modified as necessary if a judge orders it or the parties agree, modification can take time. As a result, thinking through those issues before divorce and trying to reach a resolution that works well for your family can be extremely helpful and save you time, stress, and expense down the road.
The Law Office of Dustin McCrary – Here For You
If you find yourself at the beginning of the divorce process, you may feel unsure as to exactly where to begin. It may feel overwhelming to consider all of the issues you have to confront and resolve during this process, and that’s understandable. The good news though, is that you can move through this process smoothly and in a way that reduces stress and gives you the confidence to move forward to a better chapter ahead. At the Law Office of Dustin McCrary, we’re here to help you get there. We will meet you where you are and walk with you every step of the way. If you’re ready to get started, give us a call. We look forward to speaking with you soon.