In the past, married couples had to show that their spouse committed marital misconduct to get a divorce. In a no-fault state like North Carolina, neither party must show any reason for the request for divorce nor show that the other spouse was at fault.
N.C General Statute § 50-6 states that a marriage may be terminated upon application by either party after the parties have lived separate and apart for one year, and either party has been a
North Carolina resident for at least six months preceding the action for divorce.
To create a legal separation in North Carolina, the parties must live separate and apart for at least one year with the intent, by at least one party of the relationship, not to resume the marital relationship. The one-year period must be for twelve consecutive months. Under N.C.G.S. § 50-10.2, “isolated instances of sexual intercourse between the parties shall not constitute the resumption of marital relations,” and the statutory period does not reset if you and your spouse have isolated sexual encounters without the intent to resume the marriage. However, moving back into the marital home for just a short period with the intent to continue the marriage will reset the one-year clock.
What is “separate and apart?” Couples cannot reside in separate bedrooms in the same house and be legally separated. Each party to the marriage must live at different addresses during the one-year statutory required period. What proof is acceptable to show that you live separately from your spouse? A rental or lease agreement, utility bills, a driver’s license with your new address, or bank statements showing a new address and that the finances of the parties were separated are generally acceptable.
Upon completing the required statutory separation period, the party seeking the divorce may file a complaint for absolute divorce in the county where either the plaintiff or the defendant resides. If the plaintiff is not a resident of North Carolina, then the complaint must be filed in the county where the defendant resides. Should the plaintiff cease to be a North Carolina resident, the action may be removed to the county where the defendant resides. The complaint, once filed, shall be served on the defendant in compliance with the North Carolina Rules of Civil Procedure. After service, the defendant will have thirty days to answer or file a responsive pleading to the complaint unless service is accomplished by publication, which gives the defendant forty days to answer the complaint. The defendant, or their attorney, may be granted an additional thirty days to respond to the complaint.
If the plaintiff has claims for post-separation support, alimony, or equitable distribution, the claims must be made before the divorce is final or the claims will be lost forever. Claims for post-separation support, alimony, and equitable distribution may continue past the date of the divorce. A woman may request to resume her maiden name, or she may request to resume the last name of a previous husband only if there were children born to that marriage with that husband’s last name.
Should the defendant not file an answer to the complaint, or other responsive pleadings, the plaintiff may make a motion for summary judgment divorce to the court. The plaintiff will then serve a copy of the motion for summary judgment divorce along with a proposed order for divorce upon the defendant. The plaintiff may then calendar their motion for summary judgment divorce with the court.
While this sounds like an easy process, there are many parts of this process that may require the help of a local, experienced family law attorney. Failure to assert the proper claims before the divorce becoming final can result in significant financial losses. This article only addresses divorce based upon a one-year separation. If you suspect marital misconduct by your spouse, you will likely need the assistance of an attorney.