There are two grounds for an absolute divorce in North Carolina. Most often, couples will separate for at least a one calendar year period. Rarely, absolute divorce will be granted based on incurable insanity, which requires a medical diagnosis and a three-year separation period.
Under North Carolina law, marriages may be dissolved on the application of either party when the following requirements are met:
At least one of the parties must have lived in North Carolina for at least six months prior to the action being filed. Residence in North Carolina means that you must both reside physically in the state and must have the intent to remain here indefinitely. A temporary departure from the state will not interrupt your residency so long as you intend to return and have no present reason to leave the state permanently. So even if you have a winter or summer home elsewhere and you spend three months out of the year there, you can still be considered a resident of North Carolina if you always return to you home here after your stay in the other location. You cannot file for divorce and then establish residency, it must be established prior to filing. However, if one of the parties moves out of the state after the filing but before trial, North Carolina will still have jurisdiction over the case. On the other hand, if the Plaintiff moves after the action has been filed, the Defendant can file a motion to have the case moved to the county in which the Defendant resides.
A person does not have to be a citizen of the United States in order to establish residency or domicile in North Carolina for divorce action purposes. Aliens, out of state students, and military personnel are all able to establish residency so long as they meet the requirement that they consider North Carolina “home” and have the intent to stay indefinitely with no intention to return to their former home. A service member stationed in North Carolina must establish both physical presence and intent to remain as well.
Separate and Apart
It is not enough for parties to move into separate bedrooms in the same house. While you don’t have to prove the separation occurred on the exact date alleged in the complaint for divorce, you do have to establish that you have lived separate and apart for at least a year prior to the beginning of the suit. The divorce complaint has to be verified and filed no sooner than the first day after the full year runs and not a day before.
It used to be that any sexual relations after separation caused the one-year period to be tolled and started over. North Carolina law has changed, however, so that now if there are isolated sexual incidents between the separated parties, the one-year period will not be affected. So long as the incidents do not add up to a “resumption of marital relations” the period will continue. Resumption of marital relations is defined by statute as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” There is no set number of incidents defined, but as long as they are limited, the year period will not be stopped.
Along with the physical separation of the parties, there must be the intent by one of the parties to end cohabitation. It does not matter if the other spouse doesn’t want to separate. So long as the separation period and all other requirements are met, the spouse who doesn’t want the divorce cannot contest it just because they don’t want it.
Proof of Separation
Usually, all that is needed is testimony by the Plaintiff to verify the parties have lived separate and apart for at least a year. So long as one party doesn’t contradict the other, the court will take the testimony of one of the parties as proof of the separation period. Either party may file for the absolute divorce after the year period is up. Neither party is required to file but neither is able to prevent the other from a divorce.
First, the complaint for absolute divorce must be filed in the district court of the county where either party resides. If the Plaintiff is a non-resident, the action must be filed in the Defendant’s county. If initially the action is filed by the Plaintiff in their county and they then move out of North Carolina, the Defendant can move to have the case moved to his or her respective county. Second, service of the summons and complaint must be made in accordance with the North Carolina Rules of Civil Procedure. After service is made, the Defendant generally has 30 days (40 days if service is by publication) to respond to the complaint by filing an answer or other responsive pleading. If need be, the Defendant can file for an extension for more time to answer. If the Defendant does not file an answer, which happens quite commonly, there is a waiting period (unless the Defendant agrees to waive the waiting period) for calendaring the case for hearing.
The court may enter judgment either upon non-testimonial, verified evidence (summary judgment) or upon a Plaintiff’s testimony in court proving the allegations of the complaint. If your lawyer uses summary judgment, you do not have to go to court for the divorce hearing. Trial procedure varies according to which county you are in. Some counties have a specific day of the week or month for hearing uncontested divorces. Sometimes judges have specific rules in the courtroom. Always make sure to find out the local customs of the county in which your case is in.
If you are not going to use summary judgment, the court will call the Plaintiff and their attorney to come before the bench. The Defendant is usually not present. The Plaintiff will then be sworn in and will have to go on the witness stand. The Plaintiff’s attorney will then proceed to give the judge the divorce judgment and then begin the direct examination process.
Here are example questions used for a direct examination of a plaintiff:
- Are you Jane Doe, the Plaintiff in this action?
- Are you married to John Doe, the Defendant in this action?
- There were two kids born of the marriage between you and the Defendant, is that correct?
- The children are Mary Doe, born October 15, 1982, and Bob Doe, born November 20, 1986, is that correct?
- Were you a resident of North Carolina for at least six months prior to filing this action?
- You separated from John Doe on September 21, 2016, with the intention to remain separate and apart, correct?
- Have you remained apart?
- Do you want the court to grant you a divorce?
After this type of questioning, the judge may have a few questions, but likely will just dismiss the witness from the stand.
In conjunction with a divorce, a spouse can be allowed to take a name other than the current spouse’s last name. The moving party just needs to file a petition for the name change when filing the divorce complaint or when filing an answer. There is no additional cost for the name change if it is done at the same time as the divorce. If you decide to change your name after the divorce, you will have to show your divorce judgment to the clerk of court, along with a monetary fee. At that time you can choose to change your name to your maiden name, name of a prior deceased husband, or name of a prior husband with whom you had a child with the same last name.
It is important to time the filing of certain things for your divorce. Failure to file an alimony claim before the entry of a divorce judgment will bar your right to assert that claim. If a dependent spouse is sued for divorce and wants to assert a claim of alimony it must be done in the divorce or asserted in a pending action prior to the divorce to preserve the dependent’s rights. A pending action is one in which the alimony claim or counterclaim has been filed and has not been dismissed as of the date of entry of the divorce judgment.
Just like alimony, failure to assert a claim for equitable distribution prior to the entry of the divorce judgment will bar the right to assert a claim for equitable distribution. An equitable distribution claim must be filed and pending prior to entry of divorce judgment to preserve the claim after absolute divorce. However, there is an exception to the rule. If service was completed by publication and there was no appearance by the Defendant in the divorce action. In that case, a Defendant may file a motion for equitable distribution within six months of the date of judgment. Judgment will not be modified in order to allow for equitable distribution claims.
Under COBRA, certain beneficiaries of health insurance policies who would lose group coverage upon divorce or separation have the right to continued healthcare for a limited period of time. Currently, spouses and children may continue to be covered by an employed spouse’s group health plan for three years following legal separation or divorce. COBRA rules are outlined in Section 162(k) of the Internal Revenue Code and in Sections 601-608 of the Employee Retirement Income Security Act of 1974, 29 USC Sections 1161-1168.