Since 1991 the divorce statute has explicitly acknowledged that the court may enter judgment either upon non-testimonial, verified evidence pursuant to Rule 56 (summary judgment) or upon a plaintiff’s appearance and giving in-person testimony at court proving the allegations of the complaint. Even though the defendant may have filed an answer admitting all of the allegations, the plaintiff must still prove to the court, by one of the two stated methods, that he or she is entitled to an absolute divorce. If your attorney uses summary judgment, you yourself do not have to go to court for the divorce hearing. Only your attorney appears; and your attorney gets the divorce for you. The trial court procedure for obtaining an absolute divorce varies slightly from county to county. Many counties set a specific day of each week or month for the hearing of uncontested divorces. Different judges have their own rules for conducting these hearings. Check with local counsel to be certain that you understand the local customs.

 

North Carolina is a “no-fault” divorce jurisdiction, so neither party has to prove marital fault in order to obtain the divorce based on a one-year separation. As long as you have been separated at least a year and your paperwork is correctly processed through the judicial system, you can get your divorce.

 

 

There are only two grounds for divorce in North Carolina. The first is a one-year separation. You must assert, under oath, that you and your spouse have been living separate and apart for one year. It is not enough to assert that you have lived in separate bedrooms, or that you have not engaged in acts of sexual intercourse. You must live in separate residences during that year. You do not need to file any papers to document the beginning of your separation; your assertion is sufficient to prove that the year has elapsed. The second ground for divorce in North Carolina is incurable insanity. However, this is rarely used.

 

 

In North Carolina, “absolute divorce” signifies nothing more than the termination of the marriage bond that was created by your wedding ceremony and marriage certificate. An absolute divorce may be granted on one of two grounds: one year’s separation pursuant and incurable insanity. Obtaining a divorce based on incurable insanity requires a minimum three-year separation and also requires that evidence be given by specified experts as to the spouse’s insanity. The insanity basis for divorce is now little used therefore, an absolute divorce can be obtained in North Carolina by either party, once you and your spouse have lived separate and apart for at least twelve consecutive months. You do not need any written document to show you separated on a given date; you merely need to remember the date on which you did actually separate. 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. Neither one of you is required to file for a divorce; but neither one of you can prevent the other party from seeking a divorce. The statutes require that the plaintiff set forth in his or her complaint that either the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint, and that the parties have lived separate and apart for one year. Additionally, the plaintiff must set forth the name and age of any minor child or children of the marriage, and in the event there are no such minor children, the complaint shall so state.

 

 

Generally the answer to this question is no. Annulments are available only in limited circumstances in North Carolina. These circumstances include all marriages between any two persons nearer of kin than first cousins, between double first cousins, between persons either of whom is under sixteen years of age, between persons either of whom has a spouse living at the time of the marriage, between persons either of whom is at the time physically impotent, or between persons either of whom is at the time incapable of understanding the marriage vows. Additionally, a marriage contracted under the belief that the wife is pregnant, followed by the separation of the parties within 45 days of the marriage, which separation was continuous for a period of one year, shall be annulled unless a child was born to the parties within ten months of the date of separation.

 

Divorce, as distinguished from child custody, child support, alimony and property distribution, is not a complex process in North Carolina. Either you or your spouse must live in the state for at least six months prior to filing the action for divorce. You or your lawyer will need to file a divorce complaint with the clerk of court in the county of your residence. The complaint must then be delivered to your spouse, either by the sheriff or by certified mail. After waiting a specified period of time either you or your attorney can appear in court and obtain a divorce. Once the order is signed by the judge, your divorce is final, and you may remarry if you so desire. However, the absolute divorce is only one part of the process. It is merely the judicial proclamation that ends your marriage. The complexity of a domestic case arises in deciding other issues such as child custody, child support, division of property, and alimony. These issues are resolved either through negotiation or through a court process.

 

 

The divorce complaint may be verified and filed no sooner than the first day after the full year of separation runs. If you verify the complaint before the year has run, even if you wait to file the complaint until after the full year, your case will be dismissed. The complaint must be verified, or signed to verify that the statements it contains are true. Where verification is not made or is improperly made, the court lacks jurisdiction to grant a divorce. For a complaint for divorce to be valid, it must be properly verified at the time it is filed.

 

 

The complaint for absolute divorce is filed in district court. The action shall be filed in the county in which either plaintiff or defendant resides. If the plaintiff is a non-resident then the action shall be brought in the county of defendant’s residence. If the parties are both residents of North Carolina and the action is filed where plaintiff resides, and plaintiff thereafter leaves the state and ceases to be a resident, then the action may be removed to the county in which defendant resides.

 

 

Service is the form of delivery of a document required by pertinent legal rules. There are various ways you can serve the summons and complaint. The defendant typically has 30 days from the date of service of summons and complaint upon him or her to file answer or other responsive pleading. A defendant can also move for an additional 30-day extension of time. In cases where service has been by publication, described in the next chapter, defendant has 40 days to file an answer. It commonly happens, however, that defendants in divorce actions file no answer. In such a case, you just wait out the waiting period for calendaring the case for hearing (or, if your spouse will agree, you get him or her to file a paper waiving the waiting period). At the expiration of the applicable waiting period, the case may be calendared for hearing.

 

A final, alternative method is a process called “Notice of Service of Process by Publication”.

 

Service by publication is when a notice regarding the action is placed in the newspaper in the county where defendant last resided. This alternative method for service is technically more complicated than the other methods, so that it may be difficult to effectuate without the assistance of an attorney. Service by publication also increases the standard waiting period from thirty to forty days (measured from the date of the first such newspaper notice).

 

 

You can also get the divorce whether or not your spouse wants to be divorced, provided that you have been separated for one continuous year and the paperwork has been correctly processed. Although North Carolina also has an alternative, three-year separation period for divorces based on one spouse’s incurable insanity, almost all modern divorces granted in this state involve couples who separated for reasons other than one spouse’s insanity.

 

 

Some people want to get divorced as soon as possible, for symbolic or personal reasons. One symbolic value served by initiating a divorce is to show your spouse (especially if the spouse left you) that you are in control of your life, and you are taking steps toward greater independence. One personal ground for going forward with the divorce is to become eligible for remarriage. If, on the other hand, neither husband nor wife wants to go through the formal steps of obtaining an absolute divorce, there is no requirement that either party does so. This is true no matter whether the parties have been separated just over a year or for many years. One potential disadvantage to getting a divorce is that a spouse will no longer be continued indefinitely as a dependent on an employed spouse’s group health insurance policy. Under present federal law, the continued coverage is only guaranteed for another thirty-six months at most following divorce.

 

The requirement that the parties live “separate and apart” for one year prior to the institution of the action is jurisdictional. You do not have to prove, however, that the separation occurred on the specific date alleged in the complaint but only that you and your spouse have lived separate and apart for a period of at least one year prior to the institution of the suit. But if you and your spouse have not lived separate and apart for at least a year, you are not eligible for an absolute divorce in North Carolina. Furthermore, it is not enough for you and your spouse to have moved into separate bedrooms in your residence, with a discontinuation of sexual relations. You and your spouse must in fact live in different residences for the year.

 

The physical separation of the parties must be accompanied by an intention on the part of one of the spouses to cease cohabitation. Thus, the intent of the other spouse is immaterial. It is very important that you understand that in North Carolina, in order to be entitled to a divorce, you need not show that a marital separation for the statutory period was by mutual agreement or under a decree of court. Even if you were the spouse who left the marriage, your wife or husband cannot contest the divorce if the year has run and all other technical requirements have been satisfied. Either party may secure an absolute divorce based upon one year’s separation even though he or she has committed a matrimonial offense or has wrongfully caused the separation.

 

 

Under prior case law, living “separate and apart” meant a cessation of habitation as well as sexual relations. The older cases repeatedly held that the separation requirement was not met if, during the one-year period, the couple engaged in sexual relations. Even isolated or casual acts of sexual intercourse were held to halt the statutory one-year period required for divorce predicated on separation. This strict rule about isolated sexual contact created many problems. The Legislature amended the relevant statute in 1987; and the following provision was added: Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of sexual intercourse between the parties shall not toll [halt] the statutory period required for divorce predicated on separation of one year. G.S. 52-10.2 provides: “Resumption of marital relations” shall be defined as 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. Under present law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” Whether or not such resumption of marital relations occurs is to be determined by “the totality of the circumstances.” That means that one incident of sex is unlikely to stop the year’s running, but no one knows for sure how much sex is “too much” for purposes of calculating the consecutive one-year period required for divorce.

 

 

Either the plaintiff or the defendant must have resided in North Carolina for at least six months immediately preceding the institution of the divorce action. The six-month residency requirement is jurisdictional. In the event the requirement is not met, the court would not have jurisdiction to try the action and any decree rendered would be void.

 

 

Residence is interpreted in North Carolina to mean a domicile: you must be both in residence (physical presence in the state) and you must have the intent to make a home here or to live here permanently or indefinitely. This state will be your residence if, when absent, you intended to return here and, despite such a temporary absence, had no present purpose to leave the state permanently. So North Carolina is your residence even if you winter in Florida every year for three months, as long as you always return to your home here afterward. Domicile within the state after commencement of the divorce action cannot be included as part of the period of residence required by the statute. The statute specifically provides that the plaintiff shall set forth in his or her complaint “that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint.” On the other hand, the removal of either plaintiff or the defendant from the state after the filing of the complaint, but before the trial, does not deprive the court of jurisdiction.

 

 

Only after the absolute divorce is granted by the North Carolina court, can a spouse remarry.

 

 

Divorce from bed and board is a fault-based action, usually brought by an injured spouse to get the court to order the other spouse out of the residence. If brought in conjunction with other claims (custody, child support, distribution of property), a judicially ordered separation pursuant to the prayer for divorce from bed and board establishes the separation required for those other actions. The complaint for divorce from bed and board must be verified and it must contain the required allegations of residency.

 

The complainant seeking a divorce from bed and board must establish at least one of the six fault grounds enumerated in the statute: abandonment, malicious turning out of doors, cruel or barbarous treatment, indignities, excessive use of alcohol or drugs rendering the condition of the other spouse intolerable, or adultery. Further, the complainant must allege that he or she did not provoke the other spouse’s misconduct. The right to jury trial in an action for divorce from bed and board is governed by the statutory provision permitting a jury to make the factual findings on issues of fault.

Only the injured party may apply for a divorce from bed and board.

 

The method for proving any of the six grounds for divorce from bed and board is the same as the proof required for any of those same grounds under the alimony case law, reviewed in the spousal support section of this chapter. The complaining party must prove the ground by the greater weight of the evidence.

 

The party defending against an action for divorce from bed and board has the common law affirmative defenses still available in the alimony context, i.e., condonation, connivance, collusion and recrimination, also discussed in more detail in the alimony section of this website. The simple fact of the parties’ reconciliation while the action is pending is not a defense, however. Resumption of marital relations after a divorce from bed and board is granted nullifies the effect of the divorce. The resumption of cohabitation is measured under the standard enunciated in Section 52-10.2, quoted in the alimony section of this chapter.

 

As an action seeking a judicially authorized separation, an action for divorce from bed and board is seen by North Carolina courts as an appropriate vehicle for awarding exclusive possession of the marital home. A divorce from bed and board “suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond.” The legislature has, however, directed that a spouse divorced from bed and board loses the rights enumerated in Section 31A-1(b) of the North Carolina General Statutes. Rights in property of the innocent spouse are likewise barred to the offending spouse, for so long as the parties remain separated, pursuant to Section 31A-1(d)(1).

 

 

No, in North Carolina there is no statute that would create a common law marriage.

 

 

In North Carolina, a parent may not change the name of a minor child without the consent of the other parent, except in the following instances: the other parent is deceased; the minor child has reached the age of 16; the minor child has the consent of the custodial parent who has supported the minor child and the clerk of court is satisfied that the non-custodial parent has abandoned the minor child; or the non-custodial parent has been adjudicated as having abandoned the minor child.

 

In non-summary judgment divorces, the court will typically call the case for trial and the plaintiff (and counsel for the plaintiff, if the party is represented) will come forward. Usually the defendant and his or her attorney are not present. The plaintiff will be sworn and placed upon the witness stand. Counsel for the plaintiff requests permission to approach the bench and hands up the divorce judgment and the appropriate number of copies. Counsel then returns to counsel table and conducts direct examination. In North Carolina, lawyers are required to stay seated while asking questions that do not require the lawyer to show some document to the witness. The following questions are used in the standard direct examination of a person seeking a divorce. Are you Mary J. Doe, the plaintiff in this action? Are you married to John P. Doe, the defendant? Three children were born of the marriage between you and the defendant, is that correct? The children are Sallie Doe, born August 16, 1984, William Doe, born September 21, 1985 and John P. Doe, Jr., born October 31, 1987, is that correct? Were you a resident of North Carolina for at least six months prior to the filing of this action? You separated from the defendant on April 15, 1989 with the intention to remain separate and apart, correct? Have you, in fact, remained apart? Do you want the court to grant you a divorce? Generally, the judge will not have any questions and, assuming that the hearing is uncontested, will allow the witness to step down.