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Simple Divorce? Think Again.

By: Hannah E. Smith, JD

Potential clients often seek an attorney’s help for what they call a “simple divorce.” The circumstances may seem simple because the only claim the potential client wishes to make is one for absolute divorce, thereby choosing to forgo claims for equitable distribution, post-separation support, and alimony. Sounds simple enough, right? Think again. The grounds for divorce under North Carolina statutes are: (1) that the parties must have lived separately and apart for one year with no intention of resuming the marital relationship; and (2) that one party or the other has resided in North Carolina for six months prior to the filing of the action. While these two grounds are not difficult to meet, a lot can happen in the year the parties are living separately and apart and, as a result, the entire trajectory of the action can change.

Parties sometimes drift apart during the one-year period of separation. Assuming no children were born of the marriage, it is not uncommon for parties to go their separate ways and to lose touch with each other. This can become a problem when filing an action for divorce and can present a huge roadblock for the case. This is because, as with any other lawsuit, the Plaintiff must serve the Defendant with the Civil Summons and Complaint for Absolute Divorce for the lawsuit to move forward. If the Plaintiff cannot locate the Defendant in a divorce action to achieve successful service, the case cannot proceed.

As stated in Rule 4 of The North Carolina Rules of Civil Procedure, the Plaintiff has 60 days from the issue date to serve the Defendant once a Civil Summons is issued. If the Defendant cannot be served in 60 days, the Plaintiff has the option of having an Alias and Pluries Civil Summons issued to extend the time for service for an additional 60 days. If the Defendant’s whereabouts are unknown, it will be challenging to complete successful service in a mere 60 days. Rule 4 of The North Carolina Rules of Civil Procedure also allows for service by publication. Under Rule 4(j1), “a party that cannot with due diligence be served by personal delivery, registered or certified mail, or by a designated delivery service authorized pursuant to 26 U.S.C. § 7502(f)(2) may be served by publication.” To pursue service by publication under Rule 4(j1), a party must demonstrate to the court that he has—with due diligence—attempted to serve the Defendant via all other avenues and methods available. Once a party is served by publication, the party has to make a defense to the pleading within 40 days after the date stated in the notice.

The bottom line is this: Exhausting all viable avenues for proper service of a Civil Summons and Complaint on a Defendant, then proceeding with service by publication can be very time consuming and prolong a divorce action. Therefore, while it may be easy for two parties to drift apart during the one-year separation period, keep up with the other party’s whereabouts to complete successful service on the Defendant when the appropriate time comes. This will ensure that your case moves along in as expedient a manner as possible.