Hi. I'm David Self, 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 are getting 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 does not involve child custody or child support, property distribution, or alimony. Divorce is only a change in status. One day you're married, and 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. That's all that it does. It's a change in status. It really is the easiest issue that we have to deal with in this process. It's very simple. It's generally uncontested, and it doesn't involve any real conflict.
The way that it works in this state is the person who wants to go ahead and get the divorce signs a set of documents called a complaint. We take those documents, including the complaint and civil summons, and we serve them on the other side. Usually, this is by certified mail. Sometimes, it is with the assistance of a sheriff's deputy. Once it's served, we wait about 30 days and file some additional paperwork. At that point, we go to court and obtain the absolute divorce.
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 will go to court on your behalf, carry the appropriate paperwork, have the hearing in front of the judge, at which time the judge will review the paperwork, and if everything is in order, he or she will grant your absolute divorce.
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 things happen. That includes scheduling your own hearing, appearing in court, and testifying 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 were separated, whether or not you've been separated for the 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.
Absolute divorce is principally based upon a one-year period of continuous separation. 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 with this, it's generally not very expensive. You must prove through your own testimony or with the assistance of an attorney that you have been separated for one year.
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 the parties did not total the one-year period of waiting. In other words, you won't have to restart the one-year separation period if there was a brief sexual encounter between the spouses during that time.
Generally, however, whether or not that one-year period starts over again is based on all the circumstances and the discretion of the judge. 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 find certainly that the intent to remain permanently separate and apart is not there if you're together for a week or together for three days. And that's key. In order to get the absolute divorce, you have to show that one spouse intended for the separation to be permanent for that entire year.
Before you can file for absolute divorce, you have to understand that one party must be a North Carolina resident and lived here for at least six months. Both parties need not be residents in North Carolina, only one. It's not a problem if one party lives out of the state or is not a resident of North Carolina.
Additionally, in order to get the absolute divorce, you can only file for a year and a day after the separation. You can't file for the divorce six months after the separation and then wait six more months to get the divorce. You can only file once there has 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. It's generally handled in the complaint if the wife files for the divorce or on what's called the answer to the complaint if the wife has been served with the divorce by her husband.
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 where one party has moved away, and the party here in North Carolina loses contact with the other spouse. The way to resolve that problem is by service of publication.
If you've ever looked in the back of your paper and seen the classified ads and the legal announcements, you will see the legal announcements for divorce in that section. For absolute divorce, sometimes you'll see a legal announcement that says a divorce case has been filed, and then unless the party to whom the divorce case has been issued files an answer, the divorce will be granted, the same way that you would go about filing giving notice to your spouse if you do not know where they are. There are certain important legal obligations and rules that you must follow in order to prove your case and serve by publication.
The last thing and really the most important thing that you need to know related to absolute divorce in this state is that it cuts off certain rights unless those rights are preserved prior to granting the absolute divorce by the judge. This is one of the big dangers in handling the absolute divorce by yourself. If you do not preserve your claim for alimony or property distribution prior to the divorce judgment being granted, you lose those rights forever.
Most counties have sets of forms that they call divorce kits. If you wish to represent yourself, you can obtain a divorce kit from the county clerk and fill out the paperwork. However, most of these kits will not have language about preserving your claim for property distribution or for alimony.
If you check out our website, you will also find that we have a divorce package. You can use that package to file your claim, but understand that does not preserve your right for alimony or for property distribution. So it's important to seek the assistance of a qualified attorney who knows divorce law before proceeding forward if you have any questions about your entitlement to alimony or equitable distribution under North Carolina law.
Also, please understand that the divorce kit on our website is very generic. It is 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 in the county where you reside, then we recommend you use the kit in that county. They are used to seeing that paperwork. They won't be surprised by other paperwork found on our website. And the chances are that if you use the court-approved divorce kit in your county, the divorce will go smoother.
I hope that this segment on absolute divorce has been informative. Take a look at our website including the videos at rosen.com. They are great resources to help you decide on how to proceed with your case. Thank you for watching. I'm David Self for the Rosen Law Firm.