You likely have many questions before, during and even after divorce. It is important to understand your rights and make sure your concerns are addressed.
Does “fault” matter in North Carolina?
North Carolina is a “no fault” state for purposes of an absolute divorce. However, in a divorce from bed and board claim, fault grounds could be any of the following: abandonment, maliciously turning the other out of doors, cruel and barbarous treatment endangering the life of the other, offering indignities to the person of the other spouse so as to render his or her life condition intolerable and life burdensome, excessive use of alcohol or drugs, or adultery. These fault grounds will be considered by the court in making a determination of a divorce from bed and board claim. Fault grounds will also be considered in claims for post-separation support and alimony.
What is an absolute divorce?
In North Carolina, an absolute divorce is a cause of action requesting the dissolution of a legal marriage. A claim for absolute divorce is separate from claims for child custody, child support, equitable distribution, post-separation support and/or alimony. In North Carolina, a claim for absolute divorce simply asks for the termination of a legal marriage after having been separated for one full year.
When can I file for an absolute divorce?
In order to obtain an absolute divorce in North Carolina, you must meet the following criteria: (1) the parties must have a valid marriage; (2) either husband or wife is a citizen and resident of North Carolina for at least six (6) months prior to the complaint being filed; (3) husband and wife have lived separately for at least one year immediately preceding the filing of the complaint with the intent of at least one of them to end their marriage; and (4) husband and wife have at no time during the separation resumed the marital relationship.
What is divorce from bed and board?
Divorce from bed and board is a fault-based claim that authorizes a court to order that the parties be allowed to physically separate from each other typically without any negative ramifications.
What is abandonment?
Abandonment is when one spouse, without reason or the consent of the other spouse, terminates cohabitation with his spouse with the intent to remain separate. Abandonment can come in the form of constructive or actual abandonment. For example, one spouse may remove himself mentally and physically from the marriage, yet still remain in the home. In another example, a spouse may decide to no longer sleep in the same bedroom or bed as her spouse, therefore, she is abandoning the marriage in that the parties are no longer participating in acts usually associated with marriage. In some cases, one spouse makes the marital home so unbearable that the other spouse has no choice but to leave. If an “innocent spouse” must leave the marital residence because it is so unbearable said spouse has been constructively abandoned by the “offending spouse.” The spouse who is leaving cannot then be legitimately charged with abandoning the house just because they left.
What if I do not want to get divorced and my husband/wife does?
Any person will be able to obtain an absolute divorce once the statutory requirements have been met. Once a complaint for absolute divorce is filed, the defendant will have thirty (30) days to respond with an answer. If the defendant fails to respond, the plaintiff can proceed with asking the court to grant an absolute divorce assuming the statutory requirements have been met. The only defense to an absolute divorce is to demonstrate that the party requesting the divorce has not me all of the statutory requirements. The most common argument against a request for an absolute divorce is that the separation has not been of a sufficient length when the action was filed. In North Carolina, that length is one year.
What does being a resident in North Carolina mean for purposes of getting divorced?
A person is considered a citizen and resident of North Carolina when he or she is domiciled in this state for at least six months. Domicile is defined as residence and the intention of the person to make a permanent home in this state. A person must be a citizen and resident of North Carolina for a divorce action to take place in this state.
My wife and I no longer live in the same residence. Are we “legally separated”?
Legally separated is typically the term associated with separating after the court has ordered a divorce from bed and board. Once you are no longer residing together, you are physically separated for the purpose of starting the clock on the one-year separation requirement for purpose of filing for absolute divorce.
My husband and I tried to get back together for a while. Does that make the one-year separation period start over for the purposes of getting a divorce?
The divorce statute specifically states that, “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. In applying this standard, our courts have looked at the actions of the couple in holding themselves out as man and wife as well as the intent of the parties. In the end, if a married person wants to satisfy this requirement of the law in order to obtain a divorce, he should dwell separate and apart from his spouse for the separation period and avoid any conduct which is indicative of marriage.
Is there common law marriage in North Carolina?
No. Common law marriage is not recognized in North Carolina.
If my husband and I lived in separate bedrooms for one year prior to making a claim for divorce, would that “constitute” one year’s separation for purposes of filing for absolute divorce?
No. Parties cannot reside in the same residence during the separation period. North Carolinas’ statute specifically states that, “[i]solated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” A married couple has resumed marital relations during the period of separation if there is a voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. The courts of our state will look at the actions of the parties in holding themselves out as husband and wife as well as the intent of the parties. Ultimately a person should live separate and apart (meaning in separate residences) from his/her spouse for the required year so as to avoid any confusion.
Can I get a divorce if I just moved here four months ago?
Probably not. Either you or your spouse has to be a citizen and resident of North Carolina for at least six (6) months before the lawsuit for divorce can be filed.
How long does the divorce process take once the complaint is filed?
Each county in North Carolina has its own local rules and procedures when processing a complaint for absolute divorce. If a plaintiff files a complaint for absolute divorce, a defendant is entitled to thirty (30) days to respond to the lawsuit. A defendant is entitled to ask the court for additional time in which to respond and in most cases a court will allow a defendant an additional thirty (30) days to respond if requested by the defendant. If a defendant fails to respond to the complaint within thirty (30) or sixty (60) days if applicable, the plaintiff is entitled to proceed with their claim for absolute divorce. In Mecklenburg County, unlike other counties, no court appearance will be required by either party for a court to enter a judgment of absolute divorce. Therefore, once a defendant has been served in Mecklenburg County, a judgment of divorce could technically be entered approximately forty-one (41) days or approximately seventy-one (71) days after the defendant has been served. In reality, you should allow a few additional days and maybe even up to a week to allow the court to process the divorce.
How can I get my marriage annulled?
You may request the court to annul your marriage if you meet the statutory requirements. The following marriages are subject to annulment: 1) Between any two persons nearer of kin than first cousins; or 2) Between any two persons who are double first cousins; or 3) Between a male person under sixteen (16) years of age and any female; or 4) Between a female person under sixteen (16) years of age and any male; or 5) Between persons either of whom has a husband or wife living at the time of such marriage; or 6) Between persons either of whom is at the time physically impotent; or 7) Between persons either of whom is at the time incapable of contracting from want of will or understanding; or 8) A marriage entered into under the representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within forty-five (45) days of the marriage and which continues uninterrupted for one (1) year, shall be voidable if no child is born to the parties within ten (10) lunar months of the date of separation.
Can I get my maiden name back after I divorce?
Yes. Pursuant to N.C.G.S. §50-12, a wife may resume the use of her maiden name by requesting she be able to do so in her complaint for absolute divorce. Only the wife may ask for this relief. If a husband files the divorce and the wife fails to answer and counterclaim with a request that she be allowed to return to her maiden name, she may be deemed to have waived the opportunity. The husband cannot request that his wife be forced to resume the use of her maiden name if she does not want to. A court will simply grant the wife the use of her maiden name but not compel her to use it.