Marriages may be dissolved by either party when the parties have continuously lived separately and apart for at least one year. However, you are not actually divorced until the District Court enters a Judgment for Absolute Divorce. North Carolina Courts will not have jurisdiction to enter a Judgment for Absolute Divorce unless at least one of the parties has been a resident of North Carolina for at least six months prior to the filing of an action for Absolute Divorce. North Carolina Courts have also interpreted "separate and apart" to encompass not only a physical separation but also an intention by at least one of the parties to cease the marital relationship.
What does it mean to live separate and apart?
To begin the one-year separation period, one party (or both parties) must move out of the marital residence and establish a separate residence. Moving into the guest bedroom is not sufficient. You do not need any "legal papers" showing your separation from your spouse. The mere act of moving out of the marital residence is sufficient to begin the separation period.
What if my spouse and I reconcile during the period of separation?
If you and your spouse resume your marital relationship after separation, the "one-year clock" stops. If you resume your marital relationship but later separate once again, the one-year clock will start over. Isolated incidents of sexual intercourse between separated spouses will not toll the one-year separation period or constitute a resumption of the marital relationship. Moving back into the marital residence with your spouse and failing to maintain a separate residence will almost always be considered a resumption of the marital relationship. Whether the marital relationship has resumed will be determined on a case-by-case basis.
What is the court process for obtaining a Judgment for Absolute Divorce?
Once you meet the requirements to obtain a divorce in North Carolina, one party may initiate the divorce process with the District Court by filing a Complaint for Absolute Divorce. Once you file the Complaint, along with a Servicemembers Civil Relief Act Declaration (see AOC-G-250 Form located on nccourts.gov), you must obtain a Summons from the Clerk of Court. You should not file a Complaint and request the issuance of a Summons unless and until you have met all the requirements outlined above.
The next step is to serve your spouse (i.e., the "Defendant") with the Summons, Complaint and Declaration. Service rules can be complex but must be followed.
Once the Defendant has been served, the Defendant will be allowed thirty (30) days to respond to the Complaint. The Defendant may request an additional thirty (30) day extension to respond to the Complaint. Assuming the Defendant admits the allegations in the Complaint, or, alternatively, fails to respond to the Complaint, you may file a Motion for Summary Judgment, asking the Court to enter a Judgment for Absolute Divorce as a matter of law. Unless the Defendant files a Waiver of Notice with the Court, you must give the Defendant ten days' notice of the hearing and file the Notice of Hearing with the Court.
Alternatively, you may present a Judgment for Absolute Divorce before the Clerk of Court (see AOC-CV-710 form) if:
- The Defendant failed to make an appearance in the matter or respond to the Complaint.
- There are no contested issues in the divorce pleadings.
- The Defendant filed a waiver of the right to file an Answer.
You do not need to give notice of the hearing before the Clerk if the Defendant failed to make an appearance in the action or if the Defendant filed a written waiver of the right to receive notice of the hearing.
If the Defendant files an Answer denying one of the necessary allegations to receive a Judgment for Absolute Divorce (for example, if the Defendant claims you were not separated for one year), you will need to set the matter for hearing and present evidence and testimony to the Court to support your allegations that a divorce is proper. Assuming you have met the statutory requirements to obtain a divorce, the Judge should enter a Judgment for Absolute Divorce at the conclusion of the hearing. A Certificate of Absolute Divorce or Annulment should accompany the Judgment and will be submitted to North Carolina Vital Records. Finally, the Plaintiff or Plaintiff's counsel should ensure that the Judgment for Absolute Divorce is served on the opposing party pursuant to Rule 5 of the North Carolina Rules of Civil Procedure, and a Certificate of Service should be filed with the Court.
Can I request to resume the use of my maiden name or premarriage surname in the divorce process?
Yes. Whether you are the Plaintiff or Defendant, you may request the use of your maiden name or premarriage surname in either the Complaint (if you are the Plaintiff) or the Answer and Counterclaim (if you are the Defendant). You can only request the use of your premarriage surname in certain circumstances presented in N.C. Gen. Stat. § 50-12.
You will want to make certain that the Judgment for Absolute Divorce reflects your name change and that you receive a certified copy of the Judgment from the Court. You can also request a name change through the Clerk of Court.
What about claims for property division, alimony, and child custody and child support?
The most important consequence to consider when filing for divorce is that if there are no pending claims before the Court for equitable distribution (property division), post-separation support or alimony when the Court enters a Judgment for Absolute Divorce, both parties lose their right to pursue these claims. This means that to preserve your claim for equitable distribution and alimony, you must file a claim (or file a counterclaim if you are the Defendant) for equitable distribution and post-separation support/alimony before the Judgment for Absolute Divorce is entered. This does not mean that you must reach a full trial on the issues of equitable distribution and spousal support before you can be divorced from your spouse. Claims for child custody and child support can be filed at any time and are not affected by the entry of a Judgment for Absolute Divorce.
Does this mean that I need to wait an entire year to get started on the divorce process?
No. During the one-year separation period, you can begin dividing marital property and debt, securing post-separation support and alimony, and working out child custody and child support issues. If you and your spouse can come to an agreement, you can enter into a Separation and Property Settlement Agreement outside of the court system. Separation Agreements allow parties to maintain control over their divorce matters, keep sensitive and financial information confidential, and can drastically save on the costs associated with litigating these issues in court. If you and your spouse cannot agree, then these issues will need to be litigated before the Court.
Getting a divorce is an emotional and costly experience. Consultation with a skilled family law attorney can help you navigate the legal process and protect your equitable distribution and alimony rights.
Melody King is a litigation attorney at Ward and Smith focused on offering customized solutions for clients in complex family law matters, including property division, spousal support, child custody and divorce proceedings. Beyond litigation services, Melody also assists clients with premarital and post-marital agreements, as well as Separation and Property Settlement Agreements. mjking@wardandsmith.com
