Absolute Divorce in North Carolina

Absolute Divorce in North Carolina

While there are many personal reasons for divorce, the state requires a legally recognized cause to terminate the marriage. In North Carolina the legal dissolution of a marriage is called an “absolute divorce.” In the past, North Carolina only granted divorces upon a showing of sufficient fault. Today, North Carolina is a no fault divorce state.

Grounds for Absolute Divorce in North Carolina

The state provides only two grounds for an absolute divorce:

  • Spouses have been living separately for at least one year and either spouse has been a resident of the state for at least six months. This is North Carolina’s “no fault” divorce, meaning that neither spouse is required to prove marital fault to obtain a divorce as long as they have met the requirement of living separate and apart for at one year.
  • Spouses living apart for three years due to incurable insanity (although insanity is seldom used as grounds for divorce today).

The state also has a legal separation in the form of a Judgment of Divorce from Bed and Board. This is a fault-based claim filed on a number of grounds including; abandonment, adultery, excessive alcohol or drug abuse, cruelty, personal indignities that make life burdensome or intolerable, and malicious turning of the other spouse outdoors.

What to Consider Before Getting Divorced

Once a decision has been made to separate and divorce, several considerations should be addressed. While North Carolina will grant a divorce without regard to outstanding issues such as custody, spousal and child support, or distribution of property, it is important to take appropriate action regarding these matters to protect your rights.

Prior to filing a divorce complaint, it is important to ensure that you have taken relevant actions to protect your interests.

  • Consider all issues related to child custody, child support, alimony and property distribution before you set the divorce process in motion.
  • Think about your current and future needs and have a clear understanding of your legal rights and obligations.
  • You must assert an alimony claim before the divorce judgment so that the claim is pending when the divorce is granted. If not, you will lose your right to do so.
  • With few exceptions, a claim of equitable distribution (fair share of marital property) must also be asserted prior to the divorce judgment.

North Carolina allows divorcing husbands and wives to keep support, custody and property issues from going to court through “Separation Agreement and Property Settlement” contracts. In fact, most married couples resolve their differences without court intervention. However, approaching the divorce process constructively while in the emotional throes of the break-up in a marriage can sometimes be impossible.

Frequently Asked Questions

Divorce and Absolute Divorce

My spouse and I are getting an uncontested divorce. Do I still need an attorney?

You do not need an attorney to obtain an uncontested divorce in North Carolina. But the divorce decree is only one of many issues that arise when ending a marriage. For those other legal matters, an attorney’s help is crucial.

Divorces can involve complex issues such as spousal support, asset division, child custody and child support. If you are assisted by a skilled and experienced attorney, it can help you to avoid personal and/or property matters that may cost you money down the road.

The attorney’s mission will be to keep you fully informed of your options and protect your best interests in resolving any complications that may arise in your North Carolina divorce.

This is why Charles R. Ullman & Associates does not advise going it alone in a divorce. Instead, contact a lawyer who can review your case, explain your rights and discuss ways to meet your goals.

If you would like to learn more about uncontested divorces in Wake County, you can check out the Wake County Clerk of Court’s website and learn about informational packets that the office provides.

You can also arrange for a consultation at our Raleigh office with a N.C. State Bar-certified Family Law Specialist. Simply call or contact us online today.

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

You can obtain a North Carolina divorce whether or not your spouse wants to be divorced, provided that two conditions are met: you have been separated for one continuous year and the paperwork has been correctly processed.

It is not sufficient to merely declare that you and your spouse are separating. Separation means that each partner resides in a different household. Following the one-year separation, you are free to file for divorce immediately.

During your separation, however, it’s important to sort out how property, debts, custody and alimony are to be allocated not only when you’re living apart, but also when a divorce is officially granted. The terms you and your spouse agree to on these legal issues are entered into a legally binding separation agreement. Separation agreement terms are completely up to the two parties — a judge does not have to approve them. Once notarized, an agreement is valid.

Failure to negotiate a separation agreement means you are leaving decisions of child custody, alimony and property distribution up to the judge. Negotiating these matters beforehand has the added benefits of saving you money, time and aggravation.

The divorce attorneys at Charles R. Ullman & Associates can help you draft a separation agreement that fairly reflects your marital circumstances and protects your interests moving forward.

What is an absolute divorce?

You may not realize it, but there are actually two types of divorce in North Carolina: “absolute divorce” and “divorce from bed and board.” An annulment of a marriage is also possible under certain circumstances.

Absolute divorce, you might say, is a “normal” divorce and the type of marriage termination that most spouses are seeking. Either party can obtain an absolute divorce in North Carolina. Once you and your spouse have lived separate and apart for at least 12 consecutive months, the divorce may be granted. You do not need any written documentation to show you separated on a given date. Instead, you merely need to remember the date on which you separated. 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.

A divorce from bed and board (DBB) is technically not a divorce at all, but rather a fault-based type of legal separation. The six grounds for this type of “limited divorce” are based on injury and include abandonment, cruel or barbarous treatment and adultery. Any of these six grounds for DBB must be proven through evidence. If granted, DBB does not mean that the marriage is ended, so neither you nor your spouse may legally remarry. DBB is rare among civilians but more common in the military community as a means to suspend the duty of spousal support. It can also give legal sanction to one partner leaving the marital home (so the action is not seen as “abandonment”).

A final option to end your marriage is annulment. Annulment, available under limited grounds, means that the marriage was never valid in the first place, and so now is null and void. Annulments are typically difficult to obtain, so unless you have a compelling reason for wanting one, you are probably better off seeking an absolute divorce.

However you choose to end your marriage, it’s important that you speak with a Raleigh divorce lawyer who understands the law and has your best interests in mind.

How do I obtain an absolute divorce in North Carolina?

Obtaining a divorce in North Carolina is not a complex process. However, you need to make sure that you meet certain requirements and follow important steps.

The requirements are:

  • You and your spouse must actually live separate and apart for one year.
  • Either you or your spouse must have resided in the state for six monthsbefore filing the divorce action.

Important steps that you will need to take include:

  • You or your lawyer must file a divorce complaint with the clerk of court in the county of your residence (for instance, the Wake County Clerk of Court’s Civil Division).
  • The divorce complaint must be served on your spouse (for instance, by certified mail or delivery by the county sheriff).
  • Either you or your attorney must appear in court to obtain the divorce.

Once the judge signs the decree, your divorce is final. You may remarry if you so desire.

Please see our page on Steps for Getting a Divorce in North Carolina for more details about this process.

You can also check out the relevant North Carolina divorce statute and read about the Civil Division of the Wake County Clerk of Superior Court.

My husband cheated on me. Do I automatically qualify for a divorce in North Carolina?

Because North Carolina is a “no fault” divorce jurisdiction, marital fault (i.e., infidelity) does not have to be proven by one spouse in order to obtain a divorce from the other. Divorce in North Carolina may be based on only one of two grounds. Divorce based on 12 months of separation is typical, and in rare cases, divorce is based on the “incurable insanity” of one spouse.

But despite not being a grounds for divorce, adultery has other ramifications for North Carolina divorces. Specifically, if one spouse is having an extramarital affair, it can impact the post-divorce settlement. It can also lead to a civil lawsuit against the cheating spouse’s lover.

If you are an adulterous dependent spouse (as proven by your husband), the court will take this into account and it may mean you will be denied alimony. On the other hand, if your husband cheated on you (and you can prove it), it could mean that you receive a greater alimony payment. A judge will similarly take adultery into account when deciding child custody and could find that it is inappropriate for the child to live with the spouse who cheated (although this is uncommon).

As one of the most legally unforgiving states in terms of adultery, North Carolina also allows a spouse whose partner cheated on him or her to file a civil lawsuit against the spouse’s lover. Compensable damages for mental anguish, loss of support and similar types of pain and suffering may be awarded. Again, you must prove adultery on the part of your spouse in order to file this type of civil suit.

To summarize, as long as you and your spouse have been separated for at least one year and your paperwork is correctly processed through the judicial system, you may obtain a divorce for any reason. The impacts of adultery on a North Carolina marriage, however, are potentially far-reaching. If you suspect that an extramarital affair has occurred while you were still married, you should discuss your legal options with a Raleigh divorce attorney.

Do I need an attorney to obtain a divorce?

Although it is legal in North Carolina to obtain a divorce without representation by counsel, the Raleigh divorce lawyers of Charles R. Ullman & Associates do not advise going it alone. Although a DIY divorce using court-provided documents, website information and other resources is possible, an attorney can best protect your interests, keep you fully informed of your options and help you avoid complications that could cost you money down the road.

Take the matter of spousal support (alimony), for example. In North Carolina, the court considers 16 separate factors when deciding the duration and amount of alimony, including things like how long the marriage lasted, the earnings and earning capacities of each spouse and each party’s accustomed standard of living. The court is supposed to make alimony decisions with fairness to all parties in mind, but it can be difficult to know what’s fair (and what isn’t), according to NC divorce law, unless you are an expert on those laws.

Complex issues can also arise in matters of asset division, child custody and child support. Did you know that North Carolina considers three types of property when dividing assets between spouses? Or that if there’s a custody dispute, either parent may request a custody evaluation?

The divorce law experts at Charles R. Ullman & Associates intimately understand all aspects of divorce and how they can work to your advantage. Without representation, you risk making mistakes that you could be paying for the rest of your life. Life isn’t always fair, but with help from an attorney, your divorce can be.

Evidence and Divorce

Do I need to prove that my spouse cheated on me to get an absolute divorce in North Carolina?

No, you don’t have to prove adultery to obtain an absolute divorce in North Carolina. We are considered a “no-fault” state. However, there are related matters where proof of adultery is could be important.

By “no-fault” state, we mean that you do not have to show marital fault to obtain the divorce in North Carolina. As long as you have lived separate and apart for one year, at least one of you has resided in the state for at least six months and you have completed all required paperwork, you can get a divorce. This type of divorce is called an absolute divorce.

However, to obtain a divorce from bed and board – some refer to this as “legal separation” – you do need to prove fault. Adultery is one possible ground. Other grounds include abandonment, cruel or barbarous treatment, indignities or alcohol or drug abuse. Although this type of divorce brings certain entitlements such as the right to receive spousal support, or alimony, you will not be entitled to remarry until you obtain an absolute divorce.

Additionally, marital misconduct such as adultery could be a factor in determining alimony.

You can learn more at our Separation and Alimony pages.

You can also read N.C. Gen. Stat. § 50-7, which sets out the grounds for divorce from bed and board, and N.C. Gen. Stat. § 50-16.2A, which explains “postseparation support.”

Can my spouse get a court order to see texts I sent to another person?

Yes, your spouse may be able to obtain a subpoena that would demand your service provider to turn over those records (if they are still available). This is a hot issue right now in divorces.

Electronic evidence, including e-mails, text messages and Facebook and other social media pages, are increasingly being used in divorces in North Carolina and elsewhere. This evidence can be used for many reasons, particularly to establish marital misconduct such as adultery or to show alcohol and/or drug abuse (factors in alimony awards and child custody decisions).

Most service providers will require a subpoena before they turn over those records. However, these records may be more difficult to obtain as time passes.

We have written extensively on this subject on our Social Media and Electronic Evidence in Divorces page.

You should also read an interesting survey done by the American Academy of Matrimonial Lawyers (AAML), which identified electronic evidence becoming a divorce issue back in 2008.

An Experienced Raleigh Divorce Lawyer Can Help

Divorce is not an easy process from any perspective. However, it is important to look beyond the near-term emotions and concentrate on protecting your rights. The help of an experienced legal counselor can help ensure that your interests are protected and that you do not agree to provisions that you will regret sometime in the future. Please contact us today to discuss your case.