Like all other states, North Carolina allows for no-fault divorces. However, no-fault doesn’t mean no requirements. Before filing for an absolute divorce in North Carolina, you should make sure you know the rules and the consequences. Keep reading to learn more.
What Is a No-Fault Divorce?
A no-fault divorce is a divorce where neither party has to allege and prove that the separation and divorce is the fault of the other spouse. While a no-fault divorce doesn’t require either spouse to provide any grounds for divorce, one of the spouses still has to file the lawsuit for absolute divorce.
What Is an Absolute Divorce?
“Absolute divorce” is a legal term that means the termination of a marriage along with all the rights and privileges that come with it. When most people use the word “divorce,” they’re thinking of an absolute divorce.
So why is it called absolute divorce? The answer is that there is actually another type of divorce, which is called “divorce from bed and board.” A divorce from bed and board doesn’t terminate a marriage; instead, it’s a type of court-ordered separation.
No Fault Doesn’t Mean No Consequences!
A no-fault absolute divorce only results in the termination of the marital relationship, including the special rights that come with marriage. However, an absolute divorce does not resolve any of the other issues that come with marital separation, such as spousal support (alimony) and equitable distribution (property division). There are only two ways to resolve those issues:
- Settle them in a separation agreement or court order before the divorce is granted; or
- File claims for those issues in court before the divorce is granted.
If you don’t file or resolve your claims for property division and spousal support at the time your absolute divorce is granted, then you lose the right to file those claims forever! If you have a divorce action pending and you haven’t filed your claims for equitable distribution and spousal support, please contact us immediately for help.
To get an absolute divorce in North Carolina, you and your spouse will have to meet certain requirements. Here’s what you need to know.
North Carolina law has a separation requirement for an absolute divorce, and this requirement has two parts:
- One spouse must intend to leave the marital relationship
- You and your spouse must live separate and apart for 12 continuous (back-to-back) months
So, if you and your spouse separate once for six months, get back together for two, and then separate for another six months, you’ve only been separated for six continuous months. You would need to remain separated for six more months — without getting back together again — before you can file for an absolute divorce.
2. You Don’t Need to File Paperwork for Separation
You don’t have to sign any legal separation papers to start the 12-month separation period. To begin the separation period, you only need to do two things:
- Start living separately from your spouse with the intent to leave the marital relationship
- Keep track of the date the separation happened
Living separately from your spouse does not mean living in different rooms in the same house. Separation requires separate residences. If you and your spouse see each other from time to time, that’s fine — as long as you don’t get back together or move in again. If you do, the 12-month requirement starts over.
3. At Least One Person Needs North Carolina Residency for 6 Months
Let’s say that as soon as you separate, your spouse decides they want to move to another state so they can get some space. It’s okay for one spouse to leave the state. However, you can’t both move away, because the law says that before you can file a divorce lawsuit, at least one of the spouses petitioning for divorce needs to have been a North Carolina resident for six months or more.
What if you and your spouse both already moved to other states? In that case, one of you will have to move back and establish residency for at least six months if you still want to obtain a no-fault absolute divorce in North Carolina.
4. Only One Spouse Has to File for Divorce
Many people think spouses have to file together for no-fault divorce, but that’s not true. Under North Carolina law, only spouse one needs to file a summons and complaint and start the divorce process. (“Complaint” is just a legal term for the document — it doesn’t mean you’re blaming your spouse or complaining about anything.) If you’re the one filing, you must “serve” your spouse with the divorce papers.
To serve the complaint, your spouse will need to accept service, which means they sign a form that acknowledges they received the papers and agrees they are the defendant. (Again, the term “defendant” sounds harsh, but it doesn’t mean either spouse is on trial like in a criminal case. The person filing the papers is the “plaintiff,” and the person being served is the “defendant” — it’s as simple as that.) If the other party will not accept service, you will need to either have a sheriff serve the papers or have them delivered by certified mail.
Once your spouse receives the complaint, they have 30 days to “answer” or respond. You must give your spouse the full 30 days, so don’t try to go forward with your case unless your spouse has responded to the complaint or 30 days have passed.
You don’t have to work with your spouse to file a complaint for divorce, but if you want your divorce to go smoothly, you should probably talk about it with your spouse before you file to give them a heads up. Even if you and your spouse have a cordial post-separation relationship, they probably won’t appreciate getting blindsided with a divorce filing.
Do I Need a Lawyer for a No-Fault Divorce?
No! Plenty of people file their own papers for divorce. However, working with a lawyer has benefits. When you have an experienced divorce attorney handle your no-fault divorce, you can feel confident everything will be handled correctly. Your lawyer should also take care of preparing the paperwork and getting it filed at the courthouse, which saves you time, work, and stress.
Although you don’t need a lawyer to file for divorce, the other legal issues that tend to come with divorce are a different story. If your divorce involves any related issues, like spousal support or property division, then you should definitely get advice from an attorney about the law and your options before your divorce is finalized. Remember what we said earlier, because it’s very important: if your absolute divorce goes through and you haven’t filed claims for spousal support or property division, then you’ll lose your right to file those claims forever.
Finding a Lawyer for Your No-Fault Divorce in North Carolina
If you need help with a no-fault divorce or any other family law matter in the Charlotte area, the team at Myers Law Firm is here to help. We’ll treat you with compassion and keep you updated throughout the legal process so you always know what comes next. And while we work hard to negotiate and find common ground, we’ll never hesitate to stand up and fight for you with aggressive strategies if that’s what the situation calls for.
To schedule your initial consultation with one of our experienced family law attorneys call us at 888-376-2889 or fill out our quick and convenient online contact form.
The content provided here is for informational purposes only and should not be construed as legal advice on any subject.