When most people think of divorce, they are actually thinking of what is known in North Carolina as absolute divorce. Absolute divorce is when the bonds of matrimony are dissolved and this action is discussed in North Carolina General Statute Section 50-6.
The following is a brief explanation of how to obtain an absolute divorce in North Carolina. If you have any questions about the process, you should consider talking to a family law attorney to ensure you do not make any costly mistakes.
- You and your spouse must live separate and apart for one year, and one or both of you must intend to stop living together as husband and wife. On the first day after one year of separation, you or your spouse may file for an absolute divorce. Being separated means that you and your spouse live in separate residences. Sleeping in separate bedrooms is not enough. Also, if you and your spouse resume the marital relationship during this time, then separate again, the one-year time period possibly starts over depending on the facts. See NCGS Section 52-10.2 for more detailed information. However, “isolated incidents of sexual intercourse” between you and your spouse will likely not reset the one-year time period, but these actions could impact other claims, such as spousal support.
- Either you or your spouse must have resided in North Carolina for at least six months before filing a complaint
fordivorce. Residence in North Carolina means that you intend to live in the State for an indefinite period of time. If you intend to return to North Carolina when you leave the State temporarily (for example, on vacation or to attend college out-of-state), then you meet the requirement of residing in North Carolina. Also, the residence requirement only applies to the time before the divorce filing—once the divorce complaint is filed, neither you nor your spouse must continue to reside in North Carolina for the State to have jurisdiction over your absolute divorce. Further, you do not need to be a U.S. citizen for purposes of obtaining an absolute divorce.
- Once the above requirements are met, you or your spouse may file a complaint
forabsolute divorce. The complaint is a document that states the grounds for a claim for divorce (such as that “the Plaintiff is a citizen and resident of Mecklenburg County, North Carolina, and has been so at least six (6) months prior to the institution of this action,” that the Plaintiff and Defendant have lived continuously separate and apart for one year with the intent that the separation be permanent, and whether there were any children of the marriage, including the names and ages of any children). Also, if you want your name changed back to your maiden name, then include a statement to that effect in the complaint, as well. You must also verify the complaint.
- Along with filing a complaint, the Plaintiff must also file a civil summons. Both the complaint and the civil summons must be served on the Defendant. The methods of service are set out in Rule 4 of the North Carolina Rules of Civil Procedure. The most common methods of serving a party who is in North Carolina are:
- Once served with the summons and complaint, the Defendant has thirty days to file an Answer to the Complaint. The Defendant may also move the Court for an extension of time to Answer, which would give the Defendant a total of sixty days from the date of service in which to file an Answer. Many times, however, the Defendant does not respond to the complaint for absolute divorce at all
(a) by the Sheriff’s Office in the county where the Defendant is located;
(b) by certified mail, return receipt requested, through the U.S. Postal Service; or
(c) by the Defendant signing and dating an acceptance of service.
- Once served with the summons and complaint, the Defendant has thirty days to file an Answer to the Complaint. The Defendant may also move the Court for an extension of time to Answer, which would give the Defendant a total of sixty days from the date of service in which to file an Answer. Many times, however, the Defendant does not respond to the complaint for absolute divorce at all.
- When the time has passed per the statute and there are no disagreements regarding the basic elements needed for the absolute divorce, the Plaintiff may file a motion for summary judgment and send a copy of the motion to the Defendant via U.S. mail or by hand delivery.
- Upon serving the motion on the Defendant, the Plaintiff may then schedule the hearing for the absolute divorce after ten days if the motion was sent to the Defendant by hand delivery. If the motion was sent to the Defendant by mail, then the Plaintiff must wait thirteen days to schedule the hearing.
- The Plaintiff may also schedule the absolute divorce for a live hearing in front of the Court, and testify regarding the basic elements needed for the absolute divorce. The Plaintiff must notice the Defendant and schedule as he/she would when filing a motion for summary judgment.
- The procedure for the divorce hearing varies by county. In some counties, the various judgments for divorce are given to the judge designated to handle divorces that week, who will sign the judgment, then give the judgment to the clerk for filing. Contact a family law attorney to determine the appropriate local procedure.
While obtaining an absolute divorce is a fairly straightforward process, there are significant consequences that result from obtaining a judgment of absolute divorce, including giving up certain marital rights, such as equitable distribution of your marital property and spousal support. You should absolutely strongly consider discussing the matter of divorce with