For Worse, For Poorer, Until Divorce Do Us Part
Serge Semirog
This article marks the beginning of a three-part series on the various laws dealing with divorce in the state of North Carolina. In the next week or so, we will be going over the following: absolute divorce, divorce from bed and board, and alienation of affections. Let's start with the standard absolute divorce:
Today, the law of North Carolina permits divorce based upon one year's separation without regard to fault, or a three year separation based on incurable insanity.
The latter being rarely used, we will focus on the prior. Like the separation statutes of other states, North Carolina imposes few requirements. The plaintiff must establish the following:
- North Carolina residence by either the plaintiff or defendant for six months preceding the filing of the action;
- marriage;
- living separate and apart for one year preceding the filing of the complaint;
- and the intent not to resume the marital relationship.
Should all of the above be true, no party can contest the motion for a divorce in North Carolina. We can then break down each requirement.
Residence: Fairly consistent with absolute divorce requirements of other states, six months is the average time one needs to spend in North Carolina before one can file for divorce. Reading into the statement, it is important to note that one party must reside in the state - not just have a home in the state. Secondly, six months must have elapsed BEFORE filing for divorce. In other states, having a home in the state can satisfy the residence requirement and time counts up until the decree of divorce. In North Carolina, this must be your principal home with intent to make NC your permanent residence.
Marriage: In the complaint, the plaintiff must simply allege that he or she was married to the defendant. As long as the defendant admits the plaintiff's allegation, there should be no issues. If the defendant contests the validity of the marriage, that is a different issue to be discussed at a later time.
Separation and Intent: The State of NC has no interest in keeping alive marriages that are dead physically. Therefore, the court has established three criteria:
- a physical separation, and
- the intent on the part of at least one of the spouse to cease matrimonial cohabitation
- for a full year
While this final requirement seems to be the most simple, it is evidently the one that has brought up the most contentious issues in court. Court rulings continue to define how to calculate the year, what constitutes physical separation, and what constitutes consent - most defenses against a separation are linked to this final criteria.
Nevertheless, if you are looking for a quick and easy way to divorce, an absolute divorce is the way to go. There is no-fault listed for the divorce. This is great for couples who can amicably separate and split possessions reasonably and want the divorce to be less expensive than the initial wedding!
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