Absolute Divorce: FAQs

What are the requirements to be divorced in North Carolina?

To obtain a divorce in the state of North Carolina, at least one of the parties must have been a resident in the state for the six months directly preceding the commencement of the absolute divorce action. Most importantly, you and your spouse must be separated for a year and a day.

When am I separated?  

For a separation to be valid in the context of absolute divorce, during the separation period, neither spouse can live with the other at the same residence. Couples may believe that sleeping in separate bedrooms of their home is an adequate way to effectuate separation; however, this is untrue in the eyes of the law. Additionally, during this period of separation, it must be the intent of at least one party to separate with the intention of ending the marital relationship. This intention need not be expressed to the other spouse and does not need to be formed at the time at which the separation period commences. However, not communicating the intent to separate can cause a divorce action to result in a contested hearing regarding the separation date. If the parties resume their marital relationship after separating, their previous state and date of separation is lost and cannot be used if the parties subsequently separate.

Does resuming the marital relationship mean having sexual relations?                                                

No – Isolated instances of sexual relations do not terminate the separation.  To end the separation, the parties must reconcile, cohabit and hold themselves out as reconciled.

How do I start obtaining a divorce?

Once the above elements are met, one of the parties to the marriage may file a complaint for absolute divorce to initiate the proceedings. Within this complaint, a woman may request to resume her maiden name. There are specific facts which must be present within the Complaint for absolute divorce to be procedurally proper. The complaint must list facts which state where the parties to the marriage reside, whether there are any children born of the marriage, the date of the parties’ marriage, the date of the parties’ separation, and statement that the parties have lived continuously separate and have not resumed the marital relationship since that date.

What happens after the Complaint is filed?

After it is filed, the complaint must be served upon the other party to the marriage. It may be served via certified mail, by Sheriff, via Federal Express or UPS or through publication in a newspaper. Thirty days after the other party to the marriage has been served, (45 days after the first publication) the party who filed the complaint for absolute divorce can then file a motion for summary judgment for absolute divorce, proffer the proposed judgment of absolute divorce, and obtain a week during which a district court judge will review the motion for summary judgment and proposed judgment of absolute divorce. If the filings are procedurally proper, the judge will sign the order without any need for the parties to appear in court.

What is the time frame for a divorce?

In an uncontested proceeding usually 6 to 8 weeks after service.

Does a divorce resolve any other issues such as custody or property settlement?

No –  It is extremely important to remember that absolute divorce severs the marital relationship. This means that any potential claim other than custody or child support, arising from the marriage is extinguished upon the entry of a Judgment of Absolute Divorce. Claims for Equitable Distribution of property and alimony/post-separation support must be resolved or pending before a court of the appropriate jurisdiction before the entry of a Judgment of Absolute Divorce, otherwise, those claims are waived, i. lost to you and you may lose valuable rights and monies.

By the way, what is an annulment?

It is also necessary to distinguish absolute divorce from an annulment. While a divorce severs the marital relationship, in the state of North Carolina, an annulment dissolves a marriage as though it never occurred in the first place due to the voidable nature of the marriage or the circumstances under which it took place, underage without parental consent, previously married with a living un-divorced spouse, etc.

Weaver, Bennett & Bland is well equipped to handle your North Carolina divorce needs. If you have additional questions regarding your North Carolina divorce please contact us today to set up a free one-hour consultation.