What Happens When One Spouse Does Not Want a Divorce?
Sometimes, both spouses agree that their marriage has ended and they are ready to move forward. In other cases, one spouse wants a divorce while the other hopes to reconcile. This can raise an important question: Can you contest a divorce in North Carolina if you do not want the marriage to end?
Although a spouse can challenge whether the legal requirements have been met, they generally cannot prevent a divorce simply because they do not want one. Here is how the process works.
Types of Divorce in North Carolina
It is important to distinguish between an absolute divorce and a divorce from bed and board.
Absolute Divorce
An absolute divorce legally ends the marriage. Most absolute divorces in North Carolina are based on the spouses living separate and apart for at least one year.
Fault generally does not determine whether an absolute divorce can be granted. However, marital misconduct may still affect other matters, including alimony.
North Carolina also permits an absolute divorce based on incurable insanity. This option requires the spouses to have lived separate and apart for three consecutive years because of one spouse’s condition.
Divorce From Bed and Board
Despite its name, a divorce from bed and board does not legally end a marriage. Instead, it is a fault-based, court-ordered separation.
The spouse requesting it must establish at least one recognized ground, such as:
- Abandonment
- Maliciously forcing a spouse out of the home
- Cruel or barbarous treatment that endangers a spouse’s life
- Indignities that make a spouse’s life intolerable or burdensome
- Excessive use of drugs or alcohol
- Adultery
A spouse who receives a divorce from bed and board must still meet North Carolina’s requirements for an absolute divorce before the marriage can legally end.
Requirements for an Absolute Divorce
Most people obtain an absolute divorce based on one year of separation. The spouse filing for divorce, known as the plaintiff, must establish that:
- The parties are legally married.
- At least one spouse has lived in North Carolina for six months before filing.
- The spouses have lived separate and apart for at least one year.
- At least one spouse intended the separation to be permanent.
Living “separate and apart” requires the spouses to reside in different homes. Moving into separate bedrooms within the same house does not meet this requirement.
Only one spouse must intend for the separation to be permanent. The other spouse does not have to agree.
Can You Defend Against an Absolute Divorce?
A spouse who receives a divorce complaint is known as the defendant. The defendant may challenge whether the plaintiff has satisfied the legal requirements for an absolute divorce.
However, successfully contesting a divorce in North Carolina usually delays the process rather than preventing it permanently.
Challenging the Marriage
A defendant may argue that no valid marriage exists. In most cases, the plaintiff can establish the marriage by presenting a marriage certificate or other evidence.
Questions about the validity of a marriage can be legally complicated. An attorney can determine whether there is a legitimate basis for challenging it.
Challenging North Carolina Jurisdiction
The defendant may argue that neither spouse met North Carolina’s residency requirement when the case was filed. Evidence may include:
- A driver’s license
- Lease or mortgage records
- Utility bills
- Tax documents
- Other records showing residency in another state
If neither spouse lived in North Carolina for the required six months, the court may lack jurisdiction to grant the divorce.
Disputing the Separation Date
One of the most common defenses is a disagreement about when the spouses separated. If they have not lived in separate homes for a full year, the court may delay the divorce until the requirement is met.
The separation date can also affect other aspects of the case. For example, it may influence the classification of property or whether a relationship with another person is considered marital misconduct.
Because the date can have consequences beyond the divorce itself, you should speak with an attorney before agreeing to a disputed separation date.
Disputing the Intent to Separate Permanently
A defendant may also challenge whether either spouse intended the separation to be permanent. However, a judge will not ordinarily deny a divorce merely because one spouse wants to reconcile.
If the other legal requirements are satisfied and at least one spouse intends to remain separated, the court may grant the divorce.
How Do You Contest a Divorce?
You generally must state your defenses in a formal answer to the divorce complaint. If you do not respond properly or raise a defense on time, the court may proceed based on the plaintiff’s evidence.
Deadlines and procedures matter. If you believe the residency requirement, separation period or another allegation is incorrect, consult a North Carolina divorce attorney promptly.
Can One Spouse Stop a Divorce?
In most cases, one spouse cannot permanently stop an absolute divorce in North Carolina. A valid defense may delay the divorce if the filing spouse has not yet met all the requirements. Once those issues are corrected, however, the court can grant the divorce without the other spouse’s consent.
Before an absolute divorce is finalized, it is also important to address unresolved claims involving property division and spousal support. Failing to preserve those claims may result in the permanent loss of important rights.