Divorce in North Carolina – A primer

It is relatively easy to obtain a divorce in North Carolina, so long as you can wait it out – you must be physically separated from your spouse for one full year before you can file for divorce in North Carolina (click here for information on what to do if your spouse refuses to leave).  In addition, either you or your spouse must have been a resident of North Carolina for six months prior to the date that one of you files for divorce. see N.C.G.S. § 50-6.  Lets take these two issues one at a time.

First, (and to be honest, this is typically the biggest hurdle to obtaining a divorce in North Carolina), you must show the court that you have been physically separated for one full year.  That means that no, you can’t live in separate bedrooms in the same house. (We get asked that on a pretty regular basis). Also, either you or your spouse can’t have moved out for six months, then came back for a month, and then left for another six months – that starts the clock ticking again and you won’t be able to get a divorce in North Carolina until you wait out another year.

A frequent question I am asked is whether having sex with your spouse during the separation period will cause the statutory clock to start over.  Under North Carolina Statutes § 52-10.2, the answer is no, but you must be careful not to “resume marital relations”.  In other words, one crazy drunken night during the separation period would not stop the clock, but if it becomes habitual, then it may indeed rise to a resumption of marital relations.

Second, either you or your spouse must have been a resident of North Carolina for six months prior to filing the complaint for Absolute Divorce.  What is important to note here is that one of you could actually leave the state and still file for and get a divorce in North Carolina. However, if both of you move out of North Carolina prior to filing for divorce, then you cannot obtain the divorce in North Carolina.

Assuming that you can meet those two requirements, obtaining a divorce is a relatively easy matter. Simply put, an absolute divorce in North Carolina is simply a change in legal status – one day you are married, and the next day you are not. There is no division of property, child custody arrangements or spousal support (i.e. alimony) to worry about in the divorce proceeding.

That’s not to say that there are not implications and possibly even severe consequences to ending your marriage – you will give up important statutory rights and may lose access to health insurance if covered by your spouse’s plan. You will also give up your right to request spousal support from your spouse or to have the court divide your marital property if you do not have these claims pending when the judgment of absolute divorce is entered.

For these reasons, I highly recommend that you discuss these issues with a family law or divorce attorney before you either file for an absolute divorce in North Carolina or immediately upon receiving a complaint for absolute divorce from your spouse or their attorney. Provided that the filing is done properly, there are no issues with service of process, and the Absolute Divorce is uncontested, most Absolute Divorces are granted within 60-90 days of filing.  A frequent source of confusion in North Carolina is the distinction between an Absolute Divorce and a Divorce from Bed and Board.  A Divorce from Bed and Board is a a fault-based process by which an injured spouse can ask the court to order the other spouse out of the marital residence, thereby starting the one-year separation period.