Absolute Divorce – The Details
In North Carolina, 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.
The “no fault” divorce statute in North Carolina provides that “marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” Remember that you can get an absolute 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.
The requirements for obtaining an NC absolute divorce on the ground of one year’s separation are as follows:
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. For more information on jurisdiction in North Carolina, please click here.
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 a 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.
As long as you have been a North Carolina resident for at least six months on the day you file your divorce complaint, it does not matter if you remain in this state until the divorce hearing. You might want to keep this fact in mind if you are planning to move soon to another state, because the residency requirement for divorce may be longer than another six months and that state may have a longer waiting period, such as three years, for no-fault divorces based on a period of separation.
The statute also provides that “where both parties are residents of the State of North Carolina, and where the plaintiff removes from the State and ceases to be a resident, the action may be removed upon motion of the defendant, for trial or for any motion in the cause, either before or after judgment, to the county in which the defendant resides.”
Aliens, out of state students and military personnel are all capable of establishing adequate residency in North Carolina to meet the jurisdictional requirement for a NC absolute divorce. One need not be a citizen of the United States in order to establish residency or domicile within North Carolina for the purpose of divorce actions. Further, an adult student, who has become independent of parental control and support, may acquire a domi-cile at the place where his or her university or college is situated if the student regards that place as home, or intends to stay there indefinitely, and has no intention of going back to the place of the former home.
A serviceman stationed on a military reservation in the state is capable of establishing his domicile in North Carolina by virtue of section 50-18 of the North Carolina General Statutes. This statute removes the barriers which might otherwise pre-vent a serviceman so situated from establishing a legal residence in this state where the serviceman actually has the present intention of changing his domicile to this state. However, the serviceman must establish both physical presence and intent. In one case, the North Carolina Court held that the domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur.
The requirement that the parties live “separate and apart” for one year prior to the institution of the action is also 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 places for the year.
The divorce complaint may be verified and filed, then, no sooner than the first day after the full year 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.
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.
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.
Clients frequently ask how they need to prove the one year separation. Generally, the only proof offered is the testimony of the plaintiff, whether by verified pleading or by live testimony. You just say you’ve lived separate and apart for at least a year. You don’t need any piece of paper to prove that. People tend to have difficulty with the concept of they will be believed in court. In divorce actions in North Carolina, one persons testimony about the year’s separation will be sufficient if the other party doesn’t have contradictory testimony.
Once you have been separated for one full year, either one of you may file an action for absolute divorce. 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.
The complaint must be verified. 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 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. A sample of the prescribed contents of divorce complaintare illustrated on this website.
Service of the summons and complaint must be in compliance with Rule 4, which is the applicable rule of the North Carolina Rules of Civil Procedure. 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 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.
Since 1991 the divorce statute has explicitly acknowledged that the court may enter judgment either upon nontestimonial, 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.
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?
8. 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.
The absolute divorce may be granted prior to the court hearing other claims, such as an equitable distribution claim, filed in the same action. 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. A woman, for instance, can request to resume her maiden name, she can ask to take back the last name of a prior deceased husband, or she may take the name of a former husband if she has any child with that husband’s name.
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.
Before filing a divorce complaint, you must be aware of several potentially very serious issues. First, the failure to assert an alimony claim prior to entry of a divorce judgment, and failure to have such an action pending at the time the divorce is granted, will bar the right to assert a claim for alimony. Second, the failure to assert a claim for equitable distribution prior to the entry of a divorce judgment will bar the right to assert an equitable distribution claim except in certain narrow circumstances.
Be sure you understand both of these rules before you file for and obtain your divorce. A judgment of absolute divorce obtained by the dependent spouse in an action initiated by him or her eliminates that spouse’s right to alimony unless a claim for alimony has been asserted and left pending prior to the judgment, either in that action or an earlier action. A dependent spouse who is sued for divorce and who wishes to obtain alimony must assert a claim for alimony in the divorce, or have asserted it in some other pending action prior to the divorce, in order to preserve the dependent spouses’s rights. “Pending” means that the alimony claim or counterclaim has been filed and has not been dismissed as of the date of entry of the divorce judgment.
Similarly, an equitable distribution must be prayed for, and left pending, prior to entry of the divorce judgment in order to preserve the claim after the actual absolute divorce. The exception to this rule applies to someone who was served by publication and did not appear in the divorce action. Such a defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the divorce judgment. A divorce judgment cannot be modified to relieve its effect of barring either a claim for alimony or a claim for equitable distribution that was not previously asserted.
You should also be aware of a federal statute, known by the acronym “COBRA,” that extends additional medical insurance protection to the dependents of an employed-insured spouse who is separated. Under COBRA certain beneficiaries of health insurance policies who would otherwise lose group coverage upon divorce or separation have the right to continued health care coverage for a limited period of time. The COBRA rules are found in Section 162(k) of the Internal Revenue Code and in Sections 601-608 of the Employee Retirement Income Security Act of 1974, 29 USC Sections 1161-1168. COBRA currently ensures that many spouses and children can continue to be covered by an employed spouse’s group health plan for three years following “legal separation or divorce”. COBRA provides very strict notice requirements. Parties must comply with these requirements; and you should also check the company notice requirements.