Absolute Divorce - NC
In North Carolina a divorce is an absolute divorce which breaks the marital ties and releases the parties from their marital obligations and responsibilities. The most common ground for divorce is separation of the parties for more than one year. The other requirement is that one of the spouses must have lived in North Carolina for a period of six months prior to the commencement of the divorce action. This is all that is necessary to obtain a divorce. North Carolina is a “no fault divorce state” and as such no further grounds are required.
Sometimes there are issues relating to whether or not the parties have reconciled at any point during the separation. In North Carolina the resumption of marital relations is defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstance. In past cases, judges have ruled that isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations. Instead judges are looking for facts to determine whether or not the husband and wife actually reconciled and were not intending to separate.
An absolute divorce can have a substantial effect on the rights of the parties. The rights of a spouse to receive alimony and/or post-separation support as well as the right of either spouse to divide marital property are forever lost unless they are asserted prior to the time that the divorce judgment is entered. Therefore, it is critical to determine if you qualify to receive alimony or spousal support as soon as possible.
To file for divorce the spouses must be separated for one full year. At that time either spouse may file a complaint for absolute divorce (the lawsuit) and have it served on the opposing spouse. The complaint must state the names of the spouses, the date of marriage, the date of separation, the names and dates of birth of any children and it must also state that at least one of the spouses intended the separation to be permanent and that it was in fact permanent and uninterrupted for the full year. Once the other spouse is served with the divorce complaint then that spouse will have 30 days to file a responsive pleading. Essentially, unless the party has a valid reason to contest the divorce (i.e. the spouses were not separated for one full year) then a responsive pleading is not necessary. After the time has expired for the responsive pleading to be filed (30 days in North Carolina) then the case may be calendared and presented to a judge for the granting of the divorce.
The divorce decree itself is called a divorce judgment. The clerk of court for the county hearing the divorce case will keep a copy and send the necessary information to the office of vital statistics. Each of the spouses gets a copy and the attorneys typically keep a copy. One point worth noting if one spouse took the name of the other spouse when they were married then that spouse may take back his or her maiden name back simply by formally asking for it in the divorce pleadings. This is often much simpler than going through the formal name change process.
If want to learn more about how to get a divorce in North Carolina, or are currently going through a divorce and need to learn more about your rights - Marshall & Taylor are here to help. We want to make sure that your interests are represented while we guide you through the divorce process as comfortably as possible. Contact us today to learn more or schedule a confidential consultation.