We frequently hear in the news that celebrities have “filed for divorce” right after they separate, which gives people the impression that a divorce is as simple as waking up one day and deciding you’re finished being married. The law in North Carolina, however, doesn’t quite work this way.
Under North Carolina law, you and your spouse can obtain an absolute divorce from each other if you meet two conditions:
- You have lived separate and apart for one year, and
- At least one of you had the intent to no longer participate in the marital relationship for the entire one year period.
One of you must also have resided in North Carolina for at least six months prior to the filing of the divorce. An absolute divorce is not required to be based on the fault of one of the parties, and there is no particular document you must file to begin the one-year period of separation. Instead, the one-year separation period begins as soon as you begin living separately and at least one of the two spouses intends to no longer be in the relationship.
(If you’re wondering what an absolute divorce is, it means a divorce that permanently severs the marriage. An absolute divorce is what most people are thinking of when they use the term “divorce.” There is another type of fault-based divorce in North Carolina called a “bed and board divorce,” but we won’t be discussing that category of divorce in this article.)
Spouses are not required to wait out the entire one-year separation period before they can seek court action or before they can settle other claims that may arise out of the dissolution of the marriage, such as custody, child support, spousal support, and equitable distribution. You can deal with these claims immediately upon separation or even before you and your spouse separate, and, likewise, you don’t have to completely resolve these issues prior to seeking the divorce.
However — and this is very important — the claims for equitable distribution and spousal support can be lost forever if you don’t assert them in a court filing prior to the granting of the divorce.
The Procedures for Obtaining an Absolute Divorce
In order to obtain an absolute divorce, one party (the plaintiff) must file a complaint with the court and have a summons issued by the clerk of court. If you’re acting as the plaintiff (in other words, if you’re the spouse who wishes to initiate the divorce), then you must serve the summons and complaint to your spouse, who will be the defendant in the lawsuit.
You can serve your spouse (the defendant) using any of the authorized methods of service under the North Carolina Rules of Civil Procedure, or by the defendant accepting service of the summons and complaint. Once this is done, your spouse will have 30 days to file an answer.
Often, in an uncontested divorce, the defendant doesn’t file an answer. Even if that’s the case, you only need to wait until the 30-day window to file the answer expires before you can move forward with the divorce. For an uncontested divorce in Mecklenburg County, you’ll file a Motion for Summary Judgment and receive a hearing date; on the hearing date, the judge will review the court file. If all of the paperwork is correct — meaning the proper allegations have been pled in the complaint, proper service was obtained, and the proper time deadlines have been met — the judge will grant you an absolute divorce.
Spouses who wish to handle the divorce process on their own can go to the Mecklenburg County Courthouse Self-Serve Center and get assistance and the proper forms. If you’d like to know that your case is in the hands of an experienced family law attorney, however, then please feel free to contact our offices to set up an initial meeting where we can discuss the process and your legal options.
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Contact Myers Law Firm If You Need Help with a Family Law Matter
At Myers Law Firm, we understand that the end of a marriage is never an easy time for either spouse, so we approach every case with compassion and understanding to search for solutions. While we excel at respectful negotiation and will work to find common ground with the other side, we are ready to stand up in court and fight for your rights with an aggressive approach if that’s what it takes.
The attorneys at Myers Law Firm have experience handling all of the major family law issues that surround the end of a marriage, including alimony, child custody, child support, and property division. We’re here if you need help. To get in touch with us, call our offices at 888-376-2889 or fill out our online contact form today.
Definitions, Article 1, Chapter 50, N.C. General Statutes. § 50-16.1A. (2015). Retrieved from http://www.ncleg.net/EnactedLegislation/Statutes/PDF/BySection/Chapter_50/GS_50-16.1A.pdf
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