Sometimes couples are in agreement that their marriage is at a point in which they are both ready to move on.  However, many divorces begin when one spouse wants out and the other doesn’t.  Sometimes the one left behind holds on to the belief that there is hope for reconciliation.  Unfortunately, while couples do get back together occasionally, there are many who do not.  Sometimes one spouse has moved on with another person.  Sometimes one spouse just recognizes there are fundamental differences between them and their spouse.  So what happens when one spouse wants a divorce and one doesn’t?

Types of Divorce

  1. Fault-based divorces are brought by the injured spouse and usually are based on: adultery, abandonment, maliciously kicking out the complaining spouse, treating the complaining spouse in such a cruel or barbarous way that it endangers his or her life, indignities that render the complaining spouse’s condition intolerable or life overly burdensome, or excessive drug or alcohol use that makes the complaining spouse’s condition intolerable or life overly burdensome.
  2. No-fault-based divorces are those that do not involve any fault by either spouse, or it just isn’t the basis for the divorce. Fault can still come into play in other areas of the case, but it has no bearing on the spouse’s ability to file for divorce.  An absolute divorce can be granted after a one-year separation or if one spouse is found to be incurably insane and there is a three-year separation.

In North Carolina, most people obtain a divorce by way of one-year separation.  You will need to first show there was a valid marriage and then that either spouse has lived in North Carolina for at least six months prior to filing the divorce action.  Then, you must be able to prove that you have lived separate and apart from your spouse for at least one calendar year.  This means there must be physical separation, so moving into another bedroom in the marital home does not qualify as separation.  Finally, you must prove that at least one of the parties has no intention to resume living together, meaning they intend to continue to live separate and apart going forward.

The only other option for getting an absolute divorce is proving that a spouse suffers from incurable insanity and that the couple has lived separate and apart for three years due to the insanity.


The burden is on the person who brings the divorce action, known as the Plaintiff, to prove: (1) the parties were married; (2) North Carolina has jurisdiction; (3) the parties have lived separate and apart for a year; and (4) that the parties intend to remain living separately.  The Defendant then has the burden to object to any of the allegations.  However, this is no easy task.

To raise a defense based on lack of a marriage can be difficult.  The Plaintiff only needs to produce the marriage license to prove a marriage in fact exists.  Further, North Carolina does not require a marriage license for a marriage to be valid.  Other than bigamy, North Carolina does not recognize any other reasons for a marriage to be void.

If the Defendant wants to prove jurisdiction is not proper in North Carolina, they must produce evidence showing proof of residency somewhere other than North Carolina for the six months prior to the action being filed.  Things such as bills showing a mailing address, date on a driver’s license, and lease agreements are all examples of ways to show residency.  If the Defendant can prove that the Plaintiff was not a resident of North Carolina at least six months before filing the action, they may be able to persuade the court that North Carolina is not the proper jurisdiction for the divorce.

The most common defense raised is that there has not been a separation of at least a one-year period.  If there is a discrepancy regarding when the actual separation occurred, this may cause a delay in obtaining the absolute divorce.  However, the reality is that regardless of the start date being disputed, the divorce will eventually be granted even if at a later date than the Plaintiff alleged.  While this may be a stall tactic for many different reasons, one of the most common reasons to use this defense has to do with the impact of the date on the case.  Alimony and equitable distribution could be affected if one spouse states they were separated on a certain date and began a relationship with another person.  If the other spouse can show they were not actually separated, the relationship may be considered an affair and affect the outcome of the case.

Generally, the intent to be permanently separated is not a defense.  Judges will not refuse to grant a divorce based on the fact that one of the parties just doesn’t want it.  If all the other factors are met, the divorce will be granted.

How Do You Contest a Divorce?

You will need to raise your defense to the divorce complaint in your answer responding to the complaint.  If you fail to raise your defense and the Plaintiff meets all the requirements for the absolute divorce, the court may not entertain your defense if it is brought at a later time.

As you can see, most of the defenses available to the absolute divorce being granted are merely ways to delay the inevitable, but not actually defeat the divorce action completely.  As long as the Plaintiff can meet all the requirements for obtaining the divorce, the best defense will only delay the divorce judgment until the defects in the Plaintiff’s case can be rectified.



Divorce Lawyer

102 W Broad St
Statesville, NC  28677

(704) 380-0456

Divorce Lawyer

106 Langtree Village Dr
Suite 301
Mooresville, NC. 28117
(704) 593-6688

Hickory, NC
Divorce Lawyer

520 8th St NE
Suite #108
Hickory, NC 28601
(828) 459-6464

Lenoir, NC
Divorce Lawyer

118 Main St NW
Lenoir, NC, 28645
(828) 221-2999

© 2019 The Law Office of Dustin S. McCrary, PLLC | Legal Disclaimer & Privacy Policy | The material in this website may be considered advertising under applicable rules.