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Due Process and No-Fault Divorce

Dycus v. Dycus, ____ N.W.2d ____ (October 2020).

Once upon a time in North Carolina, the concept of a no-fault divorce was unheard of. In fact, some of this state’s earliest granted divorces stem not from the courts, but rather the legislature. In those days past, a spouse would have to apply for a divorce before the General Assembly, and then take up valuable legislative time by having the legislature investigate the grounds for a divorce. These days, divorces are much easier to come by, requiring only a resident spouse to show a one-year separation. Surprisingly, from time to time a spouse does not seem to “let it go” and some states have had to adjudicate appeals from divorces based on constitutional grounds. Below, we discuss a peculiar appeal on those grounds from Nebraska stemming from a no-fault divorce.

  • Facts: Wife filed a complaint for divorce based on a breakdown in the marriage. Husband responded to the complaint with a lengthy motion to dismiss based on constitutional grounds, including such allegations for insufficient service of process, deprivation of a constitutional right, lack of standing, and violations of due process. Husband’s motion was not granted. His answer again alleged many of the same constitutional violations. At the hearing, which Husband did not attend, the trial court found that the marriage was irretrievably broken and granted the relief sought. Husband appealed, and here we discuss his argument for unconstitutional violations of procedural due process.
  • Issue: Did the trial court violate the US Constitution by granting a divorce?
  • Holding: No
  • Rationale: The Court found no merit in any of Husband’s arguments on appeal. Due process is concerned with deprivations of life, liberty, and property without adequate safeguards. Husband argued specifically that Nebraska’s no-fault divorce statute deprived him of the adversarial procedures that are essential to procedural due process. However, Nebraska, like many other states (including North Carolina), do have hearings for divorce in which testimony can be heard and evidence presented. Husband then cited Supreme Court precedent in Obergefell that the 14th amendment protected his liberty interests in choosing to express and define his identity as the Husband of Debra. Unfortunately, he did not seem to realize that perhaps Wife Debra was also exercising her choice of expressing her identity as not the wife of Michael. On a more serious note, the Court noted that Obergefell did not stand for any proposition that a spouse be forced to remain in a marriage absent fault. Because the Court did not find a valid liberty interest at stake, and because Nebraska does provide adequate opportunities for a spouse to be heard on divorce, the trial court did not err.
  • Lessons and Observations:
    1. Much like Nebraska, North Carolina’s divorce statute does not require fault for divorce. This means that challenging on due process grounds is pointless. As long as a spouse has lived in this state for the prior six months preceding filing of a complaint and has lived separately for a year, divorce will be granted.