Absolute Divorce

If you or someone you know is facing or wants to get divorced, you have likely heard of the term “absolute divorce.” You may not know, however, what this term means and how it affects divorces in North Carolina. Like many other states across the nation, North Carolina is a “no-fault” divorce state. Put simply, you do not have to show that a marriage has broken down in order to be granted a divorce.

Instead, an absolute divorce may be granted in North Carolina if the couple has been separated for one year. State law does require, however, that at least one party is a resident of North Carolina. Notably, at the same time she petitions for an absolute divorce, a wife may petition the court to request her name be changed back to her maiden name. North Carolina courts consider the year-long separation as proof that the marriage has dissolved. Under the eyes of the law, North Carolina does not seek to preserve marriages that have already ended -- whether in spirit or in fact. As a result, no-fault divorces permit a couple to end the legal marriage contract without having to go into details about the relationship as is often the case during an at-fault divorce proceeding. Upon entry of a divorce decree by a North Carolina court, the former spouses may remarry and otherwise move on with their lives without one another.

There are several requirements that must be met in order to qualify for an absolute divorce in North Carolina. These include:

• One spouse must be a North Carolina resident, meaning he or she has lived in the state for a minimum of six months prior to the filing for divorce. In order to establish residency, the person must be able to prove he or she was or has been physically present in the state for six months and intended to make North Carolina his or her permanent home;
• The couple must have been physically separated for a minimum of one year. Under the law, “separated” means the couple must be living in separate residences from one another. Depending on the circumstances, if the spouses reignite their marital relationship within the one year of separation, the time-period may restart;
• At least one of the spouses must intend to permanently end the marital cohabitation during the one year of separation.

It is not uncommon for one of the spouses to want to prevent a North Carolina absolute divorce from being granted by a court. One way in which a non-consenting spouse can halt an absolute divorce is by disproving one of the three elements listed above (i.e., residency, year-long separation, or intent to end marital cohabitation). Beyond disproving the elements required of an absolute divorce, if a spouse can establish that he or she is insane and, therefore, is unable of understanding what is happening or the nature or consequences of the other spouse’s actions, then the divorce may be dismissed.

If you are seeking an absolute divorce in North Carolina or are facing an absolute divorce being pursued by your spouse, it is essential to understand what legal effect it may have on your life. Indeed, an absolute divorce can affect every aspect of your life including property, debt, child support, and alimony.

Under North Carolina law, if a prenuptial or separation agreement does not exist, any property acquired during the marriage is considered joint property and will be divided 50-50 upon divorce. Once a divorce judgment is signed by a judge, you and your spouse are prohibited from redistributing assets and/or liabilities between one another. For this reason, it is vital to resolve any issues regarding property and/or debt before finalizing your divorce, whether during mediation or during litigation. Likewise, once a judge signs a divorce decree, all rights to alimony are forfeited. Of note, North Carolina regards child custody and support issues as separate claims from divorce notwithstanding marital status.

North Carolina law mandates that couples who seek to divorce must first try to mediate custody issues prior to running to the courthouse. Mediation can be cost-effective, save time, and reduce the emotional toll divorce can have on all parties. That being said, sometimes a couple’s issues cannot be resolved at mediation and divorce proceedings are necessary. It is important to have an experienced family law attorney on your side if you are considering filing for an absolute divorce or are facing an absolute divorce that was filed by your spouse. The skilled and dedicated family law attorneys at Arnold & Smith, PLLC understand how sensitive divorce and child custody cases can be. Contact us today to schedule your initial case evaluation.