In North Carolina, the requirements for obtaining a divorce are straight-forward and simple. However, the process is also one which is driven by strict statutory and procedural requirements which must be met to sever the marital relationship.
1. Elements of Absolute Divorce
To obtain a divorce in the state of North Carolina, at least one of the parties must have been a resident to the country for the six months directly preceding the commencement of the full divorce action. Most importantly, to file for Absolute Divorce in the state of North Carolina, you and your spouse must be separated for a year and a day. For separation to be valid in the context of absolute divorce, during the separation period, neither spouse can live with the other at the same residence. Couples may believe that sleeping in separate bedrooms of their home is an adequate way to effectuate separation; however, this is untrue in the eyes of the law. Additionally, during this period of separation, it must be the intent of at least one party to the marriage to separate with the intention of ending the marital relationship. This intention need not be expressed to the other spouse and does not need to be formed at the time at which the separation period commences. However, not communicating the intent to separate can cause a divorce action to result in a contested hearing regarding the separation date. If the parties resume their marital relationship after separating, their previous state and date of separation is lost and cannot be used if the parties subsequently separate.
2. Absolute Divorce Process
Once the above elements are met, one of the parties to the marriage may file a complaint about absolute divorce to initiate the proceedings. Within this complaint, a woman may request to resume her maiden name. There are specific facts which must be present within the Complaint for absolute divorce for it to be procedurally proper. The complaint must list facts which state where the parties to the marriage reside, whether there are any children born of the union, the date of the parties’ marriage, the date of the parties’ separation, and statement that the parties have lived continuously separate and have not resumed the marital relationship since that date.
After it is filed, the complaint must be served upon the other party to the marriage. It may be served via certified mail, by Sheriff, via Federal Express or UPS or through publication in a newspaper. Thirty days after the other party to the marriage has been served, the party who filed the complaint for absolute divorce can then file a motion for summary judgment for absolute divorce, proffer the proposed judgment of absolute divorce, and obtain a week during which a district court judge will review the motion for summary judgment and proposed judgment of absolute divorce. If the filings are procedurally proper, the judge will sign the order without any need for the parties to appear in court.
3. Hazard: The Effects of the Entry of a Judgment of Absolute Divorce upon claims for Equitable Distribution and Alimony
It is essential to remember that absolute divorce severs the marital relationship. This means that any potential claim arising from the marriage is extinguished upon the entry of a Judgment of Absolute Divorce. Claims for Equitable Distribution of property and alimony/post-separation support must be resolved or pending before a court of the appropriate jurisdiction before the entry of a Judgment of Absolute Divorce; Otherwise, those claims are waived.
4. Distinguishing Absolute Divorce from Annulment
It is also necessary to identify an absolute divorce from an annulment. While a divorce severs the marital relationship, in the state of North Carolina, an annulment dissolves a marriage as though it never occurred in the first place due to the voidable nature of the union or the circumstances under which it took place.