Hi. I’m Scott Allen and I want to welcome you to this segment on absolute divorce in North Carolina.
It’s important for me to say before we get started that these issues are best handled by a lawyer, and I would encourage you to go beyond getting the information you’re going to get here today by talking with a lawyer and by reading more about these issues on our website.
When we talk about absolute divorce, it’s important for us to talk about what that doesn’t involve before we jump into what it does involve. Absolute divorce in North Carolina doesn’t involve child custody or child support or property distribution or alimony. Divorce is only a change in status.
One day you’re married; the next day you have an absolute divorce and you’re no longer married. You go from being a married person to being single again. And that’s all that it involves. It’s a change in status. And it really is the easiest issue that we have to deal with in this process. It’s very simple. It’s generally uncontested and doesn’t involve any real conflict.
The way that it works in this state is that the person who wants to go ahead and get the divorce signs a set of documents called a complaint. We take the documents, including the complaint and the civil summons and we serve them on the other side. Usually this is by certified mail; sometimes it’s with the assistance of a sheriff’s deputy. Once it’s served, we wait about 30 days, then we file some additional paperwork. And at that point we go to court and obtain the absolute divorce.
Now let’s talk about the part of going to court. If it involves a lawyer, you will not necessarily have to go to court with your lawyer. Usually the lawyer can go to court on your behalf, carry the appropriate paperwork, have a hearing in front of the judge, at which time the judge will review the paperwork. And if everything is in order, your absolute divorce will be granted.
If you go to court without a lawyer and you’re handling the case yourself, you will have to follow detailed instructions about how to make that happen, schedule your own hearing, appear in court, and testify in front of a district court judge. You have to go to court. Your testimony generally relates to when you were married, how long you were married, when you separated, whether or not you’ve been separated for an appropriate amount of time to meet the statutory requirements, whether or not there are any children, and whether or not you meet the requirements under North Carolina law to obtain your absolute divorce.
Now, absolute divorce principally is based upon a one-year period of continuous separation. So once you prove the one-year period of separation, it’s generally a very easy process to get the absolute divorce yourself. However, if you choose to obtain an attorney to assist you in this, it’s generally not a very expensive process.
You must prove through your own testimony or with the assistance of an attorney that you’ve been separated for one year. And it used to be the case in North Carolina that the one-year period of separation had to be without any sexual contact between the spouses. Several years ago the law was changed, such that isolated sexual relations between spouses did not toll that one-year waiting period. In other words, you didn’t have to start again with the one year if there was a brief sexual encounter between the spouses during that year period of separation.
Generally, however, whether or not that one-year period starts over again is in the discretion of the judge, based on all the circumstances. So a court may not find that one weekend together or a hotel stay for a night with the spouses doesn’t start the period over again. But a court could certainly find that if you’re together for a week or you’re together for three days that the intent to remain permanently separated apart is not there. And that’s key. In order to get the absolute divorce you have to show that one-year period of separation and that one of the spouses intended for that separation to be a permanent separation.
Before you can file for divorce in North Carolina, you have to understand that one party must be a North Carolina resident and lived here at least six months. Now, both parties need not be residents of North Carolina; only one. It’s not a problem if one party lives out of state or is not a resident of North Carolina.
Additionally, in order to get the absolute divorce you can only file for it a year and one day after the separation. You can’t file for the divorce six months after the separation and then wait six more months for the year to occur. You can only file once there’s been a continuous separation under the law for at least one year.
Also, it’s very common in absolute divorces for one party to seek the resumption of her maiden name. That’s generally handled in the complaint if the wife files for the divorce, or in what’s called the answer to the complaint if the wife is served the divorce by her husband.
Now, understand that sometimes a party does not know where the other party has moved to. It’s not uncommon for there to be a separation and for one party to move away and the party left behind in North Carolina loses contact with the spouse who moved away. The way to resolve that problem is by service of the paperwork through publication.
If you’ve ever looked in the back of your paper and seen the classified ads and the legal advertisements, you’ll see therein legal announcements. And for absolute divorce sometimes you’ll see a legal announcement that says a divorce case has been filed and that unless the party to whom the divorce case has been issued files an answer, that the divorce will be granted. The same way you would go about filing and giving notice to your spouse if you do not know where they are. And there are certain important legal and rules that — legal obligations and rules that you must follow in order for you to prove your case and serve by publication.
Now, the last thing — and really the most important thing — that you need to know related to an absolute divorce in this state is that it cuts off certain rights unless those rights are preserved prior to the granting of the absolute divorce by the judge. This is one of the big dangers in handling an absolute divorce yourself. If you do not preserve your claim for alimony or for property distribution prior to the divorce judgment, those claims will be lost forever.
Now, most counties have sets of forms; they call them divorce kits. And if you wish to represent yourself, you can obtain a divorce kit from the county clerk, fill out the paperwork. However, most of these kits will not have language in them for preserving claims for equitable distribution and for alimony.
If you check out our website, you will also find that we have a divorce package on our website. You can use that to file your claim. But understand, that does not preserve your right for alimony and for equitable distribution. So it’s important to see the assistance of a qualified attorney who knows divorce law before proceeding forward if you have any question about your entitlement to alimony or equitable distribution under the laws of North Carolina.
Also, please understand that our divorce kit on our website is a very generic kit. It’s designed to work in all 100 counties in North Carolina. Many counties, however, have their own kits. And if you have the choice between using our paperwork on our website versus the kit that’s available in that county, use the kit in the county that you’re in. They’re used to seeing that paperwork. They won’t be surprised by any other paperwork that you might find in our kit. And chances are, if you use the county-provided divorce kit your divorce will go smoother.
I hope that this segment on absolute divorce has been informative. Take a look at the other videos available on our website at Rosen.com. There are great resources to help you decide about how to proceed with your case.
Thank you for watching. I’m Scott Allen for the Rosen Law Firm.