Divorcing spouses in North Carolina may be aware that the Tar Heel State is a “no-fault” jurisdiction. However, this category can be divided into two sub-categories: “True” no-fault states and “optional” no-fault states. What is the meaning of this distinction, and how might it affect your divorce? How can you pursue divorce in the most efficient manner possible based on the specific laws and regulations of North Carolina? These are questions you can ask your divorce lawyer during your first consultation.
North Carolina is One of the Few “True” No-Fault Divorce StatesYes, North Carolina is a “true” no-fault divorce state. This means that the Tar Heel State is in the minority, as most other jurisdictions follow “optional” no-fault divorce systems. To understand the differences between these two concepts, you first need to understand the meaning of “no-fault” in the context of divorce.
What is a No-Fault Divorce?A no-fault divorce does not require a specific “reason” or “grounds.” Depending on the state, spouses might simply tell the court that their marriage is “irretrievable” – or that they have encountered “irreconcilable differences.”
Although this might seem like a confusing idea, a no-fault divorce does not necessarily involve zero fault. The phrase “no-fault” only applies to the start of this legal process. In other words, spouses do not need specific reasons to “trigger” their divorces. However, they may subsequently accuse each other of various misconduct during mediation or legal proceedings.
True No-Fault vs. Optional No-FaultNow that you understand the definition of no-fault divorce, it should be easier to grasp the difference between “true” no-fault states and “optional” no-fault states. A “true” no-fault state gives spouses no other option but to pursue no-fault divorces. Even if a spouse has suffered abuse or serious misconduct at the hands of their ex, they cannot refer to this when filing for divorce. Instead, they must simply claim that their marriage has fallen apart due to irreconcilable differences.
In contrast, optional no-fault states give spouses the option to highlight marital misconduct when filing for divorce. There are various “grounds” for divorce in these states, and they typically include adultery, abandonment, cruelty, insanity, and many others.
Which System is Better?Each system has its own unique pros and cons, but no-fault divorces are exceedingly common in the modern era. Regardless of the jurisdiction, most spouses choose no-fault divorces because this is a simpler, cheaper, and less time-consuming process.
If you want to file for divorce based on specific grounds, you need to prove that the misconduct actually occurred. This is not always easy, and many spouses see it as a pointless endeavor. After all, you can always prove their misconduct after you file for divorce during a trial. For example, you might prove that your ex has committed child abuse while fighting for custody in family court.
That being said, some spouses appreciate at least having the option to establish grounds for divorce. This could be advantageous for spouses who want to prove misconduct early rather than later.
Optional No-Fault States Can Be Difficult for Some SpousesNot all optional no-fault states are created equal. Some require both spouses to consent to a divorce if they want to pursue a no-fault divorce. In other words, one spouse could stop the other from pursuing a divorce – unless they can establish fault. This has led to situations in which spouses feel “stuck” in unhappy marriages. It may also force some spouses to accept unfavorable settlements in order to move on with their lives.
Note that while North Carolina does not follow this system, it does enforce a mandatory one-year separation period for divorcing spouses. This is a much longer period compared to many other states, and it is designed to give spouses time to rethink divorce. Although this waiting period may keep families together after spouses take time to “cool off,” it can be highly frustrating for others who clearly do not want to remain married.
Contact Arnold & Smith, PLLC TodayThe distinction between “true” and “optional” no-fault divorce states can be confusing. There are many other subtleties to take into account, such as the difference between “community property” and “equitable distribution.” Whether you are a new resident of North Carolina or you are encountering these legal concepts for the first time, an experienced divorce lawyer can help. During your first consultation with Arnold & Smith, PLLC, you can ask questions about North Carolina’s divorce laws. Reach out today to get started with a personalized action plan.