Absolute Divorce FAQ

FAQ

Absolute Divorce: What you need to know

In North Carolina, “absolute divorce” signifies nothing more than the termination of the marriage bond that was created by your wedding ceremony and marriage certificate. An absolute divorce in North Carolina may be granted on one of two grounds: (1) one year’s separation pursuant; or (2) incurable insanity. Obtaining a divorce based on incurable insanity requires a minimum three-year separation and also requires that specified experts provide evidence as to the spouse’s insanity. The insanity basis for divorce is rarely used; therefore, an absolute divorce in North Carolina can be obtained by either party, once you and your spouse have lived separate and apart for at least 12 consecutive months.

You do not need a written document to show you separated on a given date, you merely need to remember the date on which you did actually separate. You also need to be certain that at least one of you, at the time of the separation, intended for the separation to be permanent. Neither one of you is required to file for a divorce, but neither one of you can prevent the other party from seeking a divorce.

The statutes require that the Plaintiff set forth in his or her complaint that either the complainant or Defendant has been a resident of the State of North Carolina for at least six months preceding the filing of the complaint, and that the parties have lived separate and apart for one year. Additionally, the Plaintiff must set forth the name and age of any minor child or children of the marriage, and in the event there are no such minor children, the complaint shall so state.

Can a parent change a child’s last name without the other parent’s permission?

A parent who doesn’t have the consent of the other parent cannot change the last name of a minor child unless: the other parent is deceased; the minor child is at least 16 years of age; the minor child has the consent of the custodial parent who has supported the child and the clerk of court is satisfied that the non-custodial parent has abandoned the minor child; or the other parent has been adjudicated as having abandoned the minor child.

 

 

 

Do I have to stay in North Carolina after I file for divorce?

You do not have to remain a North Carolina resident after you file for divorce. As long as you were a resident for at least six months prior to filing your complaint, you do not have to remain in N.C. Keep this in mind if you plan on moving to another state before filing for divorce because that state’s residency requirement may be more than six months. While you are free to leave N.C. after filing your divorce complaint, the relevant N.C. statute states that, “where both parties are residents of the State of North Carolina, and where the Plaintiff removes from the State and ceases to be a resident, the action may be removed upon motion of the Defendant, for trial or for any motion in the cause, either before or after judgment, to the county in which the Defendant resides.”

 

 

At what point during the process can a spouse remarry?

A spouse can remarry once a North Carolina court grants an absolute divorce.

Can a couple become legally married by living together under North Carolina laws?

No; North Carolina does not recognize common-law marriage.

Can I use a divorce from bed and board to get my spouse out of the house?

In North Carolina, a divorce from bed and board allows a spouse to obtain exclusive possession of the marital home. While a divorce from bed and board does not dissolve the marriage, this action will suspend the cohabitation aspect of the marriage. A divorce from bed and board will prohibit a spouse from exercising certain marital rights, and the spouse at fault loses his or her rights to the innocent spouse’s property.

 

 

Can I change my name when I divorce?

 North Carolina allows a spouse, when getting a divorce, to take a name other than the current spouse’s last name. The spouse seeking a name change would petition when they file the divorce complaint or when they file the answer to the other spouse’s complaint. A spouse may petition the court to change their name to their maiden name, the surname of a prior deceased husband, or the surname of a prior living husband if they have children who have that husband’s surname. The court will issue an order along with the divorce granting the request for a name change. There is no additional cost for this change when it is done at the same time as the divorce.

If you decide after the divorce that you want a name change, just present your divorce judgment to the clerk of court. For a small fee, you will be allowed to have one of the following name changes: maiden name, name of a prior deceased husband, or name of a prior husband with whom you had a child with that same last name.

 

 

Who can get an annulment?

In many cases, an annulment isn’t an option. Annulments are an option in limited circumstances in North Carolina. These circumstances include marriages between two persons nearer of kin than first cousins, between double first cousins, between persons either of whom is under 16 years of age, between persons either of whom has a spouse living at the time of the marriage, between persons either of whom is at the time physically impotent, or between persons either of whom is at the time incapable of understanding the marriage vows.

Additionally, a marriage contracted under the belief that the wife is pregnant, followed by the separation of the parties within 45 days of marriage, which separation was continuous for a period of one year, shall be annulled unless a child was born to the parties within 10 months of the date of separation.

Do we have to live “separate and apart” for one year before we can get a divorce?

In North Carolina, you must show that you and your spouse have been living separate and apart for at least one year prior to the institution of the suit. You will not be eligible for an absolute divorce without first living separate and apart for at least one year. Separate and apart does not include living in the same residence and sleeping in different bedrooms. You and your spouse must be living in different households.

 

Do support, custody, alimony and property have to be decided before a divorce is final?

An absolute divorce can be granted in spite of the fact that you and your spouse haven’t resolved other issues such as: child and spousal support; child custody; and equitable distribution.

 

 

 

How is a divorce complaint filed?

A divorce complaint needs to be filed in district court in the county in which either party lives. If the complaint is filed in North Carolina and the Plaintiff then moves out of the state, the action can be moved to the county in which the Defendant resides.

 

What are defenses against a claim for divorce from bed and board?

To defend yourself against a claim for divorce from bed and board, you can use the common law defenses that would be available in an alimony case. These defenses include: condonation; connivance; collusion; and recrimination. Reconciliation between you and your spouse is not a plausible defense. Once a divorce from bed and board has been granted, resuming marital relations will nullify the effect of the divorce.

How do I show fault for divorce from bed and board?

Fault in regard to divorce from bed and board must be proven by the greater weight of the evidence. The proof that is required under alimony case law is the same as the proof required to show fault in a divorce from bed and board case.

 

 

How do I serve the divorce complaint on my spouse?

There are several ways to serve (deliver) a complaint on your spouse. If you serve your spouse via publication, they have 40 days to file an answer. Typically, a Defendant has 30 days from the date of service to respond and the ability to request an additional 30 days to respond. Often times, a Defendant fails to file an answer. In the event that your spouse doesn’t file an answer, you just need to wait out the waiting period for a hearing or have your spouse waive the waiting period.

 

 

How is an absolute divorce granted?

The Plaintiff must demonstrate to the court that he or she is entitled to a divorce either verified evidence or in-court testimony. Even if a Defendant admits to the allegations in the Plaintiff’s complaint, a Plaintiff must still prove his or her allegations to the court by one of the above-stated methods. If your attorney uses a summary judgment motion, you will not have to appear in court. Trial court proceedings vary from county to county; therefore, you should check with your attorney to be certain of local procedures for absolute divorce.

 

 

How is residence decided in North Carolina?

In North Carolina, residence is interpreted as physical presence in the state with the intent to make a home here permanently. Even if you spend summers in a different state but intend to return to North Carolina, you are considered a permanent resident of North Carolina. Residence is determined based on the time period before the action has commenced and can’t be based on your place of residence after the divorce action has commenced. The Plaintiff’s complaint must state that either the Plaintiff or Defendant has resided in North Carolina for at least six months prior to the commencement of the action.

How long do I have to live in North Carolina to get a divorce?

Either you or your spouse must have lived in North Carolina for at least six months before filing for divorce. In the event that you or your spouse have lived in North Carolina for less than six months, the court will not have jurisdiction to try the action.

 

 

How long do I have to wait before I can get divorced?

Some people want to get divorced as soon as possible for personal reasons. One symbolic value of initiating a divorce is to show your spouse (especially if the spouse left you) that you are in control of your life, and you are taking steps toward greater independence. One personal ground for moving forward with a divorce is to become eligible for remarriage.

If, on the other hand, neither husband nor wife wants to go through the formal steps of getting an absolute divorce, there is no requirement that either party does so. This is true whether the parties have been separated just over a year or for many years.

One potential disadvantage to getting a divorce is that a spouse will no longer be continued indefinitely as a dependent on an employed spouse’s health insurance policy. Under present federal law, the continued coverage is only guaranteed for another 36 months, at most, following divorce.

What if attempts to serve my spouse for divorce don't work?

If your attempt to serve your spouse via certified mail and/or by sheriff does not work, you may attempt to serve your spouse via publication.

 

 

If I am stationed in North Carolina, how can I establish residency to file for divorce?

If you are in the military and stationed on a military base in North Carolina, state law allows you to establish North Carolina as a place of residence. The usual residency barriers are removed in this situation, and you will only have to establish that you physically reside in the state and intend to change North Carolina to your place of residence. Likewise, independent adult students may establish residency at the place in which their school is situated if they intend to stay in that state. Also, non-citizens of the United States do not need to be citizens to establish residency in North Carolina for the purpose of a divorce action.

 

If I get divorced before filing for equitable distribution and alimony, can I still file?

If you fail to assert an alimony claim or don’t have a pending alimony action prior to a divorce being granted, you will not be able to assert a claim for alimony. You must also assert a claim for equitable distribution before the entry of a divorce judgment, or you will not be able to assert a claim later. There is, however, an exception that allows you to bring a cause of action for equitable distribution up to six months after a divorce has been entered if you are the Defendant in the divorce, you were served via publication, and did not appear for the divorce action.

 

 

If I separate, does it have to be permanent and mutual?

A physical separation must be accompanied by an intent on the part of one of the spouses to stop living in the same home. The intent of the other spouse does not matter. It is very important that you know that in North Carolina, in order to be entitled to a divorce, you need not show that a marital separation for the one-year period was by mutual agreement or under a court decree. Even if you were the spouse who left, your wife or husband cannot contest the divorce if the year has run out and all other requirements have been met. Either party may get an absolute divorce based upon a one-year separation even though he or she has committed a matrimonial offense or wrongfully caused the separation.

Is my spouse at fault for our divorce?

North Carolina is a “no-fault” state in regard to divorce, so neither party has to prove marital fault to obtain the divorce based on a one-year separation. As long as the parties have been separated at least a year and your paperwork is processed through the judicial system, you can get a divorce.

What happens if my spouse does not want to get divorce?

As long as you and your spouse have been living separate and apart for at least one year and your paperwork has been correctly processed, you can get a divorce without your spouse’s consent. If your spouse has incurable insanity, the separation period must be at least three years.

 

 

What is “Notice of Service of Process by Publication”?

Notice of Service of Process by Publication is a way of serving your spouse with notice of the action through a newspaper. The waiting period, during which time your spouse has a chance to file a response, is 40 days. Because this mode of service is more complicated than others, it is difficult to achieve without the help of an attorney.

 

 

What is COBRA? Can it help if I am separated or divorced?

COBRA is a federal law that provides additional medical insurance protection to the dependents of a separated spouse. Under this statute, health insurance benefits that would have normally been lost upon divorce or separation are preserved three years following legal separation or divorce. You need to be aware of the very strict notice requirements set in place by your company insurance provider and COBRA itself.

 

 

What is divorce from bed and board?

Divorce from bed and board is a fault-based action to get the court to order the spouse who is at fault out of the residence. A divorce from bed and board can establish the separation required in other claims brought in tandem such as: custody claims, child support claims, and equitable distribution claims. You must establish residency to bring forth a claim for a divorce from bed and board. Only the spouse not at fault can apply for a divorce from bed and board. There are six fault grounds available to file for divorce from bed and board. These grounds include: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery. The spouse seeking the divorce cannot have provoked the misconduct of the spouse at fault. The complaining party must prove one of these fault grounds by the greater weight of the evidence.

If you are the spouse who needs to defend against a claim for divorce from bed and board, the same affirmative defenses available in an alimony proceeding are available to you in a claim for divorce from bed and board. Those defenses include: condonation, connivance, collusion and recrimination. Reconciliation is not an affirmative defense for a divorce from bed and board; however, if marital relations resume after the divorce is granted, the effect of the divorce from bed and board will be nullified.

Lastly, a divorce from bed and board allows a spouse to obtain exclusive possession of the marital home. While a divorce from bed and board does not dissolve the marriage, this action will suspend the cohabitation aspect of the marriage. The spouse at fault loses his or her rights to the innocent spouse’s property.

 

 

What are the steps for getting a divorce?

To obtain a divorce in North Carolina you must:

  • show that you or your spouse have lived in North Carolina for at least six months prior to the filing of the divorce action;
  • file a divorce complaint with the clerk of court in the county that you live in;
  • deliver the complaint to your spouse via certified mail or by the sheriff;
  • after the waiting period, appear in court to obtain the divorce.

Your divorce will be final once the judge has signed the order. While obtaining a divorce in North Carolina is not a complex process, issues may arise, such as: child custody, child support, division of property, and alimony proceedings.

 

What happens if I go to court to get a divorce myself?

In a typical divorce proceeding, the Plaintiff and his or her attorney (if represented) will come forward to be sworn in for testimony. The Defendant and their attorney typically aren’t present during this proceeding. After requesting to approach the bench, the Plaintiff’s counsel will present the court with the necessary copies of the divorce judgment. Next, the Plaintiff’s attorney will conduct a direct examination of the Plaintiff while seated at the counsel’s table. A direct examination of a Plaintiff in divorce proceeding consists of questions establishing the Plaintiff’s identity, the identity of the spouse, if there are any marital children, the children’s dates of birth, where the Plaintiff resides, and if and how long the Plaintiff and their spouse have been separated. The judge usually does not have any questions.

What are the grounds for divorce in North Carolina?

There are only two grounds available for divorce in North Carolina. The first is separation lasting at least one year. You must swear, under oath, that you and your spouse have been living separate and apart for one year. It is not enough to have lived in separate bedrooms, or to not have engaged in acts of sexual intercourse. You must live in separate residences during the one-year period. You do not need to file papers to document the beginning of your separation; your assertion is enough to prove that the year has elapsed. The second ground for divorce in North Carolina is incurable insanity; however, this is very rarely used.

 

What does resumption of marital relations entail?

Under prior law, living “separate and apart” meant ending habitation as well as sexual relations. The older cases found that the separation requirement was not met if, during the one-year period, the couple had sexual relations. Even isolated or casual acts of sexual intercourse were found to stop the one-year period required for divorce predicated on separation. This rule about isolated sexual relations created many problems.

The statute was amended in 1987; and the following provision was added: “Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll [halt] the statutory period required for divorce predicated on separation of one year.” G.S. 52-10.2 provides: “Resumption of marital relations” shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.

Under present law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” when it comes calculating the required one-year period for divorce.

What fault grounds can be used when filing for divorce from bed and board?

The party seeking a divorce from bed and board must prove at least one of the six fault grounds listed in the statute: (1) abandonment; (2) malicious turning out of doors; (3) cruel or barbarous treatment; (4) indignities; (5) excessive use of alcohol or drugs rendering the condition of the other spouse intolerable; or (6) adultery.

 

In addition, the party filing for the action must prove that he or she did not provoke the other spouse’s misconduct. The right to jury trial in an action for divorce from bed and board is dictated by the statutory provision allowing a jury to make the factual findings on issues of fault.

When can I file for absolute divorce?

A divorce complaint can filed and verified no sooner than the first day after the full year of separation. If you verify your complaint before the one-year period has ended, even if you wait to file the complaint until after the full year, your case will be dismissed. The complaint must be verified (signed) to show that the statements it contains are true.

Where verification is absent or is improperly made, the court lacks jurisdiction to grant a divorce. For a complaint for divorce to be valid, it must be properly verified when it is filed.

Who is eligible to file for divorce from bed and board?

Only an innocent party showing fault in the other spouse can file a for a divorce from bed and board.

What is alienation of affection in regard to infidelity?

Under North Carolina law, you may sue any individual who has a caused a married person to suffer the loss of affection from their spouse so long as you can prove there was:

  • Genuine love and affection between spouses who are validly married;
  • The love and affection was alienated and destroyed; and
  • The Defendant’s wrongful and malicious act caused the loss of love and affection.

This is considered Alienation of Affection. It is not necessary that you prove that the individual set out with the intent to destroy your marriage; you merely need to show that they acted knowing it would impact your marriage.  In fact, you don’t even have to prove sexual intercourse occurred.

What is Criminal Conversation in regard to infidelity?

Unlike alienation of affection, a claim of criminal conversation requires proof of sexual intercourse outside of the marriage.  There must be a valid marriage between you and your spouse, and there must be sexual intercourse between your spouse and a third party during the marriage.  This can be proved by direct or circumstantial evidence.

I need help!

Resources

There are some common resources that apply to most divorces. This is a good place to start.

Let us help you take the next step

The law offices of Dustin McCrary are here to help guide you through the complex process of divorce in North Carolina.