Absolute Divorce – North Carolina

You must be separated for 1 year before filing for divorce. You can file as of 1 year and a day of separation.

The requirement for separation in North Carolina is that the parties live “separate and apart”, as in living at separate addresses.

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 places for the year.

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.

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.

In North Carolina, the absolute divorce may be granted prior to the court hearing other claims, such as an equitable distribution claim, filed in the same action. And you get the divorce whether or not you and your spouse have resolved any of the other issues arising from your separation, such as custody, spousal and child support, or distribution of property.

Caution: Once the divorce is granted, you can no longer file for any issues related to divorce (ie equitable distribution, alimony, etc). For this reason, it is advised to speak to an attorney before filing a complaint for absolute divorce to ensure you receive everything you are entitled to in the divorce.

See our do-it-yourself guide for examples of the forms you will have if an attorney files your divorce for you or if you do it yourself, including the complaint for absolute divorce. We recommend speaking with an attorney to be sure you understand your rights before completing this process on your own.

Do-It-Yourself Guide

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 nonresident 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.

North Carolina law allows a spouse, in conjunction with a divorce, to take a name other than the current spouse’s last name. You would petition for the name change when you file your divorce complaint or when you file your answer to your husband’s complaint.

In your complaint for divorce or your answer, you may petition the court to change your name to either your maiden name, the surname of a prior deceased husband or the surname of a prior living husband if you have children who have that husband’s surname. The court will issue an order at the time of the divorce granting your request for a name change. There is no additional cost for this name change if it is done at the same time as the divorce.

Should you decide after the divorce that you want such a name change, you just present your divorce judgment to the clerk of court. For a nominal fee, you will be allowed to have one of the name changes specified above: maiden name, name of a prior deceased husband, name of a prior husband with whom you had a child with that same last name.

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.