Divorce Process in North Carolina

No couple expects to get divorced, but for many, it’s the best course of action to ensure both spouses can live happier, more fulfilling lives. If you and your spouse have decided to end your marriage, it’s important to understand the divorce process and your options for dissolving your marriage.

Divorce From Bed and Board

In North Carolina, there are two types of divorce:

• Absolute divorce: The marriage is dissolved, and both spouses are free to remarry if they wish.
• Divorce from bed and board: This is not an official divorce but a court order authorizing separation. This order does not end your marriage or your rights from being married. You must obtain an absolute divorce to legally end a marriage.

In order to qualify for a divorce from bed and board, you must be able to prove that your spouse is at fault and that the fault was unprovoked. The accused spouse can also bring defenses against a divorce from bed and board. There are seven grounds for divorce for bed and board:

• Cruel treatment of a spouse
• Abandoning the family
• Maliciously turning the other spouse out of doors
• Adultery
• Indignities that make a spouse’s life overly burdensome or condition intolerable
• Excessive drug or alcohol use so as to render the condition of the other spouse intolerable and the life of that spouse burdensome
• Constructive abandonment

With a divorce from bed and board, the accused spouse loses some estate rights, such as:

• Right to inherit, unless stated otherwise in a will
• Right to cohabitation—the court may also award one spouse the marital residence
• Right to homestead
• Right to petition the court for an elective share of the estate
• Right to dissent from the other spouse’s will
• Right to administer the other spouse’s estate

The spouse filing the complaint, however, maintains those rights.

If the spouses decide to resume marital cohabitation after a divorce from bed and board has been issued, the divorce from bed and board is destroyed without further action from the Court. In this case, the accused spouse’s rights lost in the divorce from bed and board are restored.

To file for a divorce from bed and board, either you or your spouse must have lived in North Carolina for at least six months prior to filing the lawsuit and the grounds for the divorce from bed and board must have existed for at least six months prior to filing the lawsuit.

Divorce from bed and board is complicated and very different from an absolute divorce. Without bringing other marital claims, a divorce from bed and board does little more than establish marital fault for alimony purposes, authorize separation, and cut off certain estate rights. To understand your rights or the rights you stand to lose, it’s important to work with an experienced and knowledgeable divorce lawyer in North Carolina.

Grounds for Divorce

In North Carolina, the grounds for divorce are:

• Separation for 12 months: The couple must have lived in separate homes for one year with the intent of at least one spouse for the separation to be permanent. If either spouse moves back into the marital home at any time during this period, the separation period resets.
• Incurable insanity: Absolute divorce may be granted if spouses live separately for three years due to incurable insanity. It is not sufficient to just say your spouse is incurably insane. There must be medical proof that the spouse is incurably insane and has been for more than three years before filing for divorce.

Obtaining an Absolute Divorce

An absolute divorce is the legal dissolution of your marriage in North Carolina. Couples can obtain an absolute divorce if they have been separated for a period of at least one year and a day.

Additionally, one of the spouses must have intended to remain separated permanently during this time. It is irrelevant if this spouse expressed their intent to the other spouse.

One spouse will need to go to the Clerk of Court and file a complaint. It is preferred that the Court be in the county in which you reside or where your spouse resides. Of course, we file the complaint on behalf of our clients. Once the complaint is filed, the divorce process will include:

• The County sheriff will deliver the divorce notice, or it will be sent via certified mail or other allowed means
• The couple will remain separated for 12 months

However, if you move back in with your spouse at any time during the 12-month period, the calendar of 12 consecutive months will reset.

Mediation

If you and your spouse have issues to be resolved other than just the divorce itself, we recommend mediation. Filing for your marital claims for alimony, child support, child custody, and equitable distribution is only the start of the process. Once filed, you’ll need to either work out the details or go to Court for resolution, which can be expensive and time-consuming.

Mediation is a way to skip the lengthy court proceedings and allows you to:

• Streamline the process
• Save on costs
• Work on the division of assets together
• Look at custody schedules that make sense
• Examine cash flow for both households

When you go through mediation, you’re hammering out the final details of your separation and divorce in a less formal setting. Mediators can also help couples come up with a unique solution based on each spouse’s demands and preferences. In mediation, you are not limited in many ways by the North Carolina General Statutes, which the Court has to apply.

Final Orders

If you do not come to a final agreement on all your rights and responsibilities arising from your separation and divorce, the Court will get involved. The judge will hear testimony and arguments from both sides.

Next, the judge will decide what they believe is best for both parties. However, the judge will listen to the recommendations of each spouse’s attorney before making the final determination.

The divorce itself can be granted in North Carolina even if all your other issues and claims have not been resolved. That’s a bit unique to our State. Most states hold the divorce “hostage” until all the details of rights and responsibilities are worked out, either by you or by a Judge.

Finding the Best Cary Divorce Lawyer for You

Your divorce lawyer should:

• Specialize in North Carolina divorce proceedings
• Offer years of experience
• Encourage mediation if appropriate

If you need a lawyer, we can help. We have years of experience helping couples mediate their divorce and save money, time, and resources.

Call us today to talk to a divorce lawyer.