In the state of North Carolina, the only time the court must be involved in the separation/divorce process is when either party is obtaining an absolute divorce.
Commonly, the parties will have resolved all or most of their substantive divorce-related issues prior to petitioning the court for an absolute divorce, however, only the court can grant an absolute divorce.
It is recommended that the parties enter into a separation agreement and property settlement prior to requesting an absolute divorce. There is a required one-year separation period before an absolute divorce will be granted. It is also advisable for parties to resolve matters of equitable distribution of assets and spousal support prior to the petition for absolute divorce. If each party is unable resolve these issues, claims must be filed in court prior to entry of absolute divorce.
Absolute divorce may be granted in North Carolina on one of two grounds: a one year’s separation pursuant and incurable insanity. Divorce on basis of insanity is now little used. 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. Petitioning for absolute divorce after a one-year separation is far more common.
If spouses have been living separately from one another (separate residences, not just separate bedrooms) for one year and a day, either spouse may apply to the court for a judgment of absolute divorce. A judgment of absolute divorce is a document signed by a judge that severs the bonds of matrimony, resulting in the parties no longer being husband and wife. In order to obtain an absolute divorce, one party will need to file a “Complaint” for absolute divorce to open a court file and serve the Complaint with a Civil Summons on the other party. It can take up to eight weeks from the date of filing the Complaint for the absolute divorce to be final.
Parties who have attorneys typically do not appear in court on the day their divorce is entered; their attorney appears for them in a “summary judgment” proceeding. If you choose to handle the divorce filing yourself, without an attorney, you will be required to appear in court before the judge and answer questions under oath related to the requirements for an absolute divorce.
Filing a Complaint for Absolute Divorce
Once parties have been separated for one full year, either party may file an action for absolute divorce. Neither party is required to file for a divorce, nor can either party prevent the other from seeking a divorce.
A 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, 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.
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.
Court Judgement: Summary Judgement vs. Trial Judgement
North Carolina’s 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. Judges can have their own rules for conducting these types of hearings. Check with your attorney to be sure that you understand the procedures for your county.
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 neither the defendant no his or her attorney are present. The plaintiff will be sworn in 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.
No-Fault Divorce in North Carolina
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.”
In order for the court to grant an absolute divorce in North Carolina, a six month residency requirement must be met. 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.
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. 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.”
As long as you have been a resident of the state of North Carolina for at least 6 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 residency requirement for divorce vary from state to state.
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.
Additional Requirements and Explanation:
Living Separate and Apart
The state requires that 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.
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.
Sexual Relations Among Parties Within the Separation Period
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.
In other words, 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.” 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.
In North Carolina, in order to be entitled to a divorce, you do not need show that a marital separation for the statutory period was by mutual agreement or under a decree of court.
This means that even if you are the spouse who chooses to leave the marriage, your wife or husband cannot contest the divorce a full year and a day has gone by 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.
Proof of separation is provide only by verified pleading or live testimony. You do not need to provide any piece or paper or additional evidence that you have been separated for one year.