Divorce is the legal process used to end marriage. Divorce itself does not address issues of custody, support or property division. Rather, divorce simply changes your legal status from married to single. Divorce in North Carolina is not fault based, in fact your spouse does not even have to agree to the divorce.
What are the grounds for a divorce in North Carolina?
In North Carolina, absolute divorce is not fault-based. The divorce statute states that “[m]arriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” N.C.G.S. 50-6. That means that you can get a divorce as long as you live separate and apart from your spouse for one year, at the time you separated at least one of you intended the separation to be permanent, and at least one of you was a resident of North Carolina for at least six months before the date on which you file for divorce. Being a resident of the state means two things: that you actually lived in (were physically present in) the state, and that you intended North Carolina to be your home indefinitely for those six months prior to filing your divorce complaint. Divorce can also be granted based on a three year separation where one spouse suffers from incurable insanity, however divorce based on a one year separation is far more common.
When can I file for divorce?
You can file for divorce after you and your spouse have lived separate and apart from each other for one full year. In other words, the soonest you can file for divorce is 366 days after you and your spouse stopped living together. It is not necessary to be able to prove that you actually separated on a specific date, but rather that you have been separated for a continuous period of at least one year before you filed the complaint for divorce. Your divorce complaint must be verified (basically meaning signed and notarized) in order to be filed, and you can only verify the complaint after the full year has passed. If you verify the divorce complaint before the year has run, it will be invalid even if you wait to file the complaint until after the year has run.
What does “separate and apart” mean?
Separate and apart means literally living in different places, as in, not under the same roof. Even if you and your spouse sleep in different rooms and cease all sexual contact, you are not living “separate and apart.” You must live under different roofs. You must also not resume the marital relationship. According to North Carolina law, resumption of marital relations means a “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. Isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.” N.C.G.S. 52-10.2.
What if my spouse does not want to give me a divorce?
In North Carolina, either you or your spouse can be granted a divorce regardless of whether the other spouse wants to remain married. Your spouse cannot stop you from being granted an absolute divorce as long as the requirements of the statute are met. In other words, what your spouse wants is irrelevant. You do not have to prove that both you and your spouse wanted to separate; you do not have to prove that you both want the divorce.
What do I have to do to get a divorce?
At its simplest and most basic, in order to get a divorce, you must first separate and live apart from your spouse for one full year. Then, you or your lawyer must file a complaint for divorce in district court. Once the complaint is filed, your spouse must be served with a summons and a copy of the divorce complaint. This is usually done by sending it to him or her via certified mail, but service also can be completed by the Sherriff’s department. You then have to wait for a specific amount of time. After the time has passed, you or your lawyer can go to court, appear before a judge, and receive an order granting absolute divorce.
When can I remarry?
You can only remarry after you have been granted an absolute divorce by the court.
Divorce - The Basics
If you are thinking about divorce, you probably have a lot of questions. How can I get a divorce? Do I have to move out? Will I have to go to court? What if my spouse doesn’t want to get divorced? What will happen to my children? What will happen to our joint bank accounts and the house? It can be overwhelming to consider the realities of divorce. That said, when it comes to divorce I believe that knowledge is empowering. Educate yourself, get informed, consult with an experienced attorney, and equip yourself to make the best decisions you can. My goal is for this site to be a resource for people who want to know more about divorce in North Carolina. Please explore these pages, look for information and answers to your questions, and if you cannot find what you are looking for on this site, feel free to contact me and ask me your questions directly.