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.
After spouses have lived separate and apart continuously for a period of at least one year, with no intentions to resume the marital relationship, either spouse may petition the court for an absolute divorce. The spouses must be living in separate residences in order for the period of separation to begin; simply sleeping in separate bedrooms within the same house is not a separation for purposes of obtaining an absolute divorce. Additionally, the period of separation will not automatically be tolled if spouses who are separated engage in isolated instances of sexual intercourse. However, if the parties have resumed their marital relationship as shown by the totality of the circumstances, then the period of separation will be tolled, and the date of separation for purposes of obtaining an absolute divorce will commence after the parties separate again.
At least one of the spouses must be a citizen and resident of North Carolina for at least six months prior to filing a complaint for absolute divorce in order for a North Carolina court to have jurisdiction to grant the divorce. Before proceeding with an absolute divorce, it is critical that you seek advice from a divorce lawyer to discuss your rights and claims arising out of your marital relationship, because you could greatly prejudice any potential claims you have for equitable distribution of marital property and spousal support.
These claims must be asserted prior to the entry of a divorce judgment. If these claims are not asserted and preserved prior to the entry of a divorce judgment, these claims are forever waived. For example, if there is any property titled in the other spouse’s name only, to which you believe you are entitled (such as cars, investment accounts, pension plans, etc.), you must assert a claim to that property prior to the divorce being granted or you will have waived any rights and claims that you may have to that property.
The attorneys at Ward Family Law Group in Cary, North Carolina are equipped to help you obtain an absolute divorce.
Frequently asked questions
- Do I have to hire an attorney to get a divorce?
No, but the law is complicated, and we do not encourage people to navigate the legal system on their own. It is always a good idea to consult with an attorney before getting a divorce, especially if you have unresolved issues from your marriage, such as equitable distribution of property or spousal support. As mentioned above, if you do not assert your claims for equitable distribution of marital property or spousal support before the entry of divorce, your claims are waived forever. However, if there are no spousal support issues or property division issues, and money is a factor, the Wake County Clerk’s office provide divorce kits to pro se litigants at a nominal cost. This kit includes examples of forms you can complete in order to obtain a divorce and tells you when and where to file each document. Even if you elect to handle your divorce on your own, before doing so, you should consult with an attorney to determine if that course of action is wise. Remember that a lot of rights terminate with the entry of a divorce judgment.
- Do I have to appear in court for the divorce?
If you hire an attorney to represent you, in most cases you will not have to appear in court. The attorney may obtain the divorce for you without your having to be present.
- I don’t want a divorce. Can I contest my spouse’s claim for divorce?
North Carolina has no fault divorce. A party requesting an absolute divorce must only show the court that: (1) at least one of the spouses resides in North Carolina for a period of six months prior to filing the divorce complaint; (2) that the parties have been separated and living apart for at least one year prior to filing a complaint for divorce; and (3) it is the intent of at least one of the spouses that the separation is to be permanent. As long as these requirements are met, your spouse is entitled to a divorce under North Carolina law.
- When can I get divorced?
You can file a complaint for divorce as soon as you and your spouse have been separated for at least one year. The divorce typically becomes final about sixty days after filing the complaint for divorce.
- Can I resume my maiden name after the divorce?
Yes. You can request that the court allow you to resume your maiden name as part of the divorce judgment or request resumption of your maiden name post-divorce.
- Do we have to have a separation agreement in place before we can get divorced?
No. Many people decide to resolve the issues arising out of marriage, such as property division, spousal support, custody and child support, estates rights, etc. in a Separation Agreement and Property Settlement, but a Separation Agreement is not a requirement for obtaining a divorce. Please keep in mind that certain claims that could arise out of the dissolution of your marriage, such as equitable distribution and alimony, are considered extinguished forever if they have not been preserved by the time the divorce is final.
- My spouse and I live under the same roof, but sleep in separate bedrooms.
No. North Carolina requires that the parties live separate and apart for one year before filing for absolute divorce. The spouses must live in separate residences.
- How much does it cost to file for divorce?
The Wake County Clerk of Court charges a filing fee of $225.00 in order to file a complaint for absolute divorce. There will also be a fee associated with serving the complaint for divorce on your spouse. The Wake County Sheriff’s Department charges $30.00 to serve a Summons and Complaint. You can also serve your spouse by certified or registered mail or by FedEx, UPS, or some other approved expedited delivery service.
- I have not spoken to my spouse in months and do not know where he/she is currently living.
It is possible to get divorced even if you cannot locate your spouse, but certain measures must be taken in order to locate your spouse before service by publication is possible.
- I just moved to North Carolina. Can I get a divorce in this state even if I was not married here?
You can get divorced in North Carolina even if you were married in another state, but you or your spouse must meet the residency requirements for North Carolina. At least one of the spouses must be a citizen and resident of North Carolina for at least six months prior to filing a complaint for absolute divorce in order for North Carolina to have jurisdiction to grant the divorce.