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Absolute Divorce

North Carolina is a no-fault divorce state. There are requirements that parties must meet to be eligible for divorce, the most significant being that the parties must have been separated from one another at least one year and one day before either party can file for divorce. This does not mean that you will get divorced in a year and a day; that is simply the first day that you will be eligible to file for divorce. It may take another six to eight weeks for the divorce to be finalized.

Basic Requirements for an Absolute Divorce in North Carolina

  1. At least one spouse has been a resident of the State of North Carolina for at least 6 months before filing for divorce.
  2. At the time of the parties’ separation, it was the intent of at least one party to permanently end the marital relationship.
  3. The parties have lived separate and apart for at least 1 year and 1 day before the divorce complaint is verified.
  4. There has not been a resumption of marital relations during the period of separation.

The Separation Requirement

The separation requirement is a serious one. To be considered separated, parties must live separate and apart. That is, they must live in different households. The date of separation is the first day the parties stop living under the same roof together. Living in the same house but different rooms or different floors is not enough. If you and your spouse are still living in the same house, you are not separated.

The Intent Requirement

In addition to the separation requirement, at least one of the spouses must have intended to permanently end the marital relationship when the parties separated. The parties do not need to tell one another – or anyone else – of this intent. But when the divorce paperwork is filed, the party filing for divorce must verify (under oath) that when the parties separated, at least one party intended to end the marital relationship and that the parties have stayed separated the entire year. That is, the parties have not reconciled or resumed the marital relationship since the beginning of the separation.

If the parties reconcile or resume the marital relationship after their date of separation and then separate again later, the second separation date is used for filing for divorce as well as other claims the parties have that relate to the date of separation.

The Effect of an Absolute Divorce

In North Carolina, a divorce only terminates the legal relationship between the spouses. When the divorce is granted, the parties are no longer married. A divorce does not address any other claim. People often think, “We’ll deal with custody or support in the divorce.” That is not the case in North Carolina. You may still need to deal with all the other claims (child custody and support; property division; alimony), but you will not do that in the context of the divorce.

While you will not deal with the other claims in a divorce, a divorce will cut off your right to make claims to equitable distribution and alimony if those claims are not filed before the entry of the divorce judgment. You may resolve those claims before the divorce is granted and, if done properly, the divorce should not have any impact on that resolution. However, if you have not properly resolved equitable distribution and/or alimony before you file for divorce, you should speak with a lawyer to find out how to either properly resolve or preserve those claims.

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