North Carolina Absolute Divorce Overview
Hi, I’m Lee Rosen of the Rosen Law Firm. Let’s talk about absolute divorce and how that works in North Carolina. Be sure to view this video all the way to the end, because at the very end, I want to warn you about a couple of things you can do that will really mess you up. There are some dangers in filing for absolute divorce that you need to be aware of, so stick with me.
What is an absolute divorce? In order to define it, I need to start with what an absolute divorce isn’t. In North Carolina, an absolute divorce is not anything that has anything to do with child custody or child support. It has nothing to do with alimony. It has nothing to do with property division. An absolute divorce is merely a status change. It takes you from being married to being single. That’s all that it does. It does not impact or affect all of those other issues that I just mentioned. It’s a very simple, very narrow process that only changes you from being a married person one day to a single person the next day.
Before I go too far with this, I want to say to you that you ought to talk to a lawyer about this process before you do anything. That’s ideal. Any legal process is best handled by a lawyer. Now, many, many people deal with their absolute divorce without a lawyer. That’s just reality, either because of what’s affordable or because of what’s most convenient, or because of some other belief about how to go through this process. As a lawyer, I’ve learned enough to know that you’re safer if you have a lawyer handle this for you. That being the case, be aware that there are lots of resources here on the site. We have provided a step-by-step, detailed guide with all of the forms that will walk you through the absolute divorce process. Go looking for that here on the site, and use it, especially if you’re going to do this on your own.
Now, of all the processes that someone can go through in the divorce system, absolute divorce is by far the simplest and easiest. It’s especially the simplest and easiest one that you can do by yourself, and you should know that at least half of the people, if not more than half of the people, that get an absolute divorce in North Carolina do it on their own. They do it without the help of a lawyer. If you go into any courthouse, you’re going to see many, many people dealing with the absolute divorce without a lawyer helping them do it.
What’s the deal? What’s involved? In order to be eligible for an absolute divorce, you must have been apart, separated, for at least one year. That’s the requirement. You must have one year of separation. Now, when you separate, you must also have had the intent to remain permanently apart. That’s a mental thing. It’s a decision that one spouse or the other has made. It does not have to be the intent of both husband and wife. It only has to be the intent of husband or wife to be permanently apart.
It’s a two-part task. You must be living apart for a year, and you must have the intent on the part of one party for that separation to have been permanent. Now, the year is an interesting time. Realistically, over the course of the year, people try to work on their relationships. Does trying to work things out start the year over? No, it doesn’t. The law is pretty clear that isolated instances of sexual contact do not restart the clock. The Legislature, the people who make the laws in North Carolina, want to encourage couples to try to stay together, and so they’ve made it very specific and very clear that you can work on the relationship without restarting the clock and having to start that year over. One year of separation coupled with the intent to remain permanently apart is required in order to get a divorce.
Let’s talk about the process for getting a divorce, and again, you can use the detailed forms and instructions that you’ll find on the website. There is special material just for this process. What do you have to do? Well, one party has to file a document called a Complaint. It’s a simple one-page form that says that you separated more than a year ago, and that separation was with the intent to remain permanently apart. That document is filed with the court, a fee is paid, a filing fee, and then the document must be served upon, or delivered, to the other spouse. That’s typically done by certified mail or by using the Sherriff’s department.
Sometimes you may not know where your spouse is, and then you can do Service by Publication. You’ve probably seen those little legal advertisements in the back of a newspaper. That’s Service by Publication. The other side has to have been given notice.
Then, and this differs by county, you must have some sort of court process. In some counties, that’ll involve you appearing in court in person. In other counties it will involve simply delivering the papers and then doing something in front of the clerk, but there won’t be a formal hearing. Then your divorce will be granted.
Now, the process takes at least 30 days, because you must give 30-day’s notice to the other side, and more typically takes about 45 or 50 days from the time you start until the time you’re finished; but that’s it. Then it’s over, and you are divorced. There’s rarely any argument about it. There’s rarely any contest. Typically, one party files, one party appears, and it’s done from beginning to end without the involvement of the other party at all. When there is an argument, it’s usually because there’s some underlying issue, typically about the value of property, and the date of separation might have impacted that valuation of the assets. In 99 cases out of 100, you just don’t see an argument about the divorce, the date of separation, whether the parties remained apart during the year, none of that comes up. It’s all very smooth sailing.
A few final notes about the process. One is that you can change your name at the time of the divorce. You can go back to your maiden name or even a prior married name, if there are children by that prior marriage.
Then finally, I want to give you the two big warnings that I mentioned at the outset of this video. Here’s the deal. You are not required to prove your date of separation by any means other than swearing to it. You simply put in that document that you’ve been separated for a year, or you testify to it in court. That’s all that’s required. I see people who listen to that, and it’s almost like you can see a light bulb go off in their head, and they say, “Hey, if that’s all I have to do to prove it, then why don’t I just lie about it?”
Well, here’s the problem with that. Lying about something in a court document or in testimony at the courthouse is called perjury in North Carolina, and perjury carries with it a 10-year prison sentence. You may think, “Well, big deal. I’m not worried about it. I want a divorce. My spouse wants a divorce. Who will tell? I’ll get away with that crime.”
Here’s the thing. The only person in the world who will know that you’ve committed this felony is your former spouse. I’ve been a divorce lawyer for a long time, and the one thing that I know is that if there is anybody in the world who is likely to be upset with you at some point down the road, it’s your former spouse. You do not want them to know that you’ve committed a felony. Just don’t do it. There’s no downside to waiting the year. There’s lots of downside to lying about it. So big warning number one is, don’t lie about your date of separation. Wait for the year to run.
Now, here’s the other big warning. This one is probably even more important, and that’s this: when you get a divorce, you lose your right to file a claim for alimony or property division. That may not be a problem. You may not have a claim for alimony or property division, or you may have already resolved those claims by agreement. You may have a signed separation agreement. If you’re not worried about losing those claims, great. Go ahead and do your divorce. But if you are concerned about losing those claims, then hold off and talk to a lawyer before you file for absolute divorce.
Now, if anything I just said is confusing to you, don’t run down to the courthouse and file your own absolute divorce, because if you do it, and if you lose these claims, you cannot repair the situation. You will have done irreparable damage. You will lose those claims, and if it’s a claim for alimony or property division, it may have amounted to a lot of money.
Absolute divorce is simple and straightforward, but there are some places where you can get caught and you can make mistakes. If you’re going to do this yourself, read the materials on our site carefully. If you’re going to hire a lawyer, then rely on them, trust them, and let them take care of this and make sure it’s done right for you.