Absolute Divorce

An absolute divorce is the legal process that actually dissolves the marriage. Certain marital rights are extinguished with the absolute divorce, including a spouse’s right to share in the other spouse’s estate. In North Carolina, most absolute divorces are granted on the basis of parties living separate and apart for a period of one year.

At Ward Family Law Group in Cary, North Carolina, our attorneys stand ready to help you throughout the entire legal process, providing personalized legal services and a comprehensive plan. Schedule a consultation today to talk over your specific circumstances and begin taking hold of your future.

Grounds for Absolute Divorce in North Carolina

In North Carolina, an absolute divorce is typically granted on a no-fault basis. This means you do not need to prove that one spouse was responsible for the end of the marriage. The primary requirements are based on a period of separation.

Before either spouse can file for an absolute divorce, you must have lived "separate and apart" continuously for at least one year with the intention of ending the marital relationship.

• What does "separate and apart" mean? You and your spouse must live in separate residences. Living in different bedrooms in the same house does not qualify as a legal separation for the purpose of divorce.

• What if we get back together? If you resume your marital relationship (as determined by the "totality of the circumstances," not just isolated instances of sexual intercourse), the one-year separation clock will stop. If you separate again, the one-year period will start over.

Residency Requirement

For a North Carolina court to have jurisdiction to grant a divorce, at least one spouse must have been a citizen and resident of the state for a minimum of six months before the divorce complaint is filed.

The Critical Importance of Asserting Your Claims

Before you finalize your divorce, it is crucial to address and resolve all claims related to the marriage. Failure to do so will result in waiving these rights forever. These claims must be asserted before the divorce judgment is entered. Key claims to consider:

• Equitable Distribution: This is the division of marital property and debt. If you believe you are entitled to a share of property titled in your spouse’s name (such as cars, investment accounts, pensions, or real estate), you must file a claim for equitable distribution before the divorce is final. If you don't, you will lose your right to that property.

• Spousal Support: If you are financially dependent on your spouse, you may be entitled to spousal support. This claim must also be filed before the divorce is granted.

Because these rights are permanently extinguished by the divorce judgment, it is highly recommended that you consult with a divorce lawyer to understand and protect your interests. The attorneys at Ward Family Law Group in Cary, North Carolina, are equipped to help you through every step of obtaining an absolute divorce.

Frequently Asked Questions (FAQ)

Do I need a lawyer to get a divorce?

While you are not required to hire an attorney, the law is complex. We strongly discourage anyone from navigating the legal system alone, especially if you have unresolved issues like property division or spousal support. If you do not assert these claims before the divorce is final, they are waived forever.

For those with no property or support issues where cost is a major factor, the Wake County Clerk’s office offers divorce kits for a nominal fee. Even in this case, consulting an attorney beforehand is a wise step to ensure you are not unknowingly giving up important rights.

What is the timeline for a divorce?

You can file a complaint for divorce after you and your spouse have been separated for one full year. The divorce typically becomes final about 60 days after the complaint is filed and served on your spouse.

Do I have to go to court?

In most cases, if you hire an attorney to represent you, you will not have to appear in court. Your attorney can handle the proceedings on your behalf.

What if I don't want the divorce?

North Carolina is a no-fault divorce state. You cannot stop your spouse from obtaining a divorce if they can prove the legal requirements have been met: (1) one spouse has resided in NC for at least six months, (2) you have been separated for one year, and (3) at least one spouse intends for the separation to be permanent.

Do we need a separation agreement to get divorced?

No, a formal Separation Agreement is not required for a divorce. However, many couples use a Separation Agreement and Property Settlement to resolve issues like property division, spousal support, and child custody before the divorce is finalized. Remember, if claims for equitable distribution and alimony are not resolved or filed with the court before the divorce, those rights are lost.

How can I get my maiden name back?

To resume your former name, you must file a "Notice of Resumption of Former Name" (Form AOC-SP-600) with the court. Simply including it in the divorce judgment is no longer sufficient.

What are the costs associated with filing for divorce?

The Wake County Clerk of Court charges a $225 filing fee for a divorce complaint. There are also fees for serving the legal documents on your spouse. The Wake County Sheriff’s Department charges $30 for service. Alternatively, you can serve your spouse via certified mail or an approved delivery service like FedEx or UPS.

I can't find my spouse. Can I still get a divorce?

Yes, it is possible to get divorced even if you cannot locate your spouse. However, you must first take specific, diligent steps to try to find them before the court will allow an alternative method of service, such as service by publication.

We were married in another state. Can I get a divorce in North Carolina?

Yes, as long as you or your spouse meet the state's residency requirement. At least one of you must have lived in North Carolina for at least six months before filing the divorce complaint.