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Absolute Divorce

If you are facing or want to get a divorce, you are probably thinking of what in North Carolina is known as an “absolute divorce.” North Carolina is a “no-fault” divorce state. This is different from other states that require some affirmative showing that a marriage has broken down. Besides residence here, one of the only things no-fault divorce requires is that the spouses have been separated for a year. A wife can also petition to have her name changed back to her maiden name along with a petition for absolute divorce.

The courts consider this separation period as proof a marriage has dissolved. The State does not want to preserve marriages that in spirit or fact have already ended, and no-fault divorce allows spouses to end their legal contract to each other without the airing of dirty laundry and sensationalism that often accompany at-fault divorce proceedings. Once the court enters a decree of absolute divorce, both parties are free to remarry and move on with their lives.

REQUIREMENTS FOR ABSOLUTE DIVORCE

To qualify for an absolute divorce, the person filing must show that:

  1. One spouse has lived in North Carolina for at least the past six months before the filing of the divorce complaint.

    1. To prove that they “live” in North Carolina, a person must establish that they:

      • Were or have been physically present for six months, and

      • Intend to make North Carolina a permanent home

        • If you conduct business in another state, or even if you no longer live in North Carolina, there are many arguments that can be made to establish this state as your permanent address. A skilled family law attorney can help ensure that your rights are protected in this matter.

  2. The spouses must have been physically separated for over one (1) year.

    • “Separated” means they must live in separate residences from each other—sleeping in separate bedrooms in the same residence does not satisfy this requirement.

    • If the spouses restart their marital relationship during that year, the one-year time period might start over, depending on the facts.

    • However, courts have held that isolated occurrences of sexual intercourse are likely not enough to reset the one-year time period

      • Keep in mind that such actions could affect other claims in a divorce case, like spousal support.

  3. At least one spouse must intend to permanently cease marital cohabitation during that year.

DEFENSES TO ABSOLUTE DIVORCE

The spouse who wants to prevent an absolute divorce in North Carolina has few options other than disproving one of the elements above—residence, a year’s separation, or the intent to end marital cohabitation. The only other defense available relates to the mental capacity of one of the spouses.

  • If the defendant-spouse establishes that they are insane to the extent that they do not know what he or she is doing or the nature or consequences of plaintiff-spouse’s actions, they are entitled to have the plaintiff’s divorce action dismissed.
LEGAL CONSEQUENCES OF ABSOLUTE DIVORCE

If you are the one considering filing for an absolute divorce, it is important to think about any issues in the following areas that you and your spouse have, and whether mediation might be able to solve any of them:

  • Property
  • Debt
  • Alimony

Mediation can save your family precious time, money and emotional toll. However, sometimes these issues cannot be resolved through mediation and it is more appropriate to assert them in court through a divorce complaint.

Property and Debt

Once a judge signs the Divorce Judgment, you are forever barred from the redistribution of property and/or debt between you and your spouse. This is why it is so important to ensure that you resolve these issues before finalizing your divorce, whether through mediation or litigation. In North Carolina, if no prenuptial or separation agreement exists to the contrary, property acquired throughout the marriage is considered “joint” property and is subject to a 50-50 division upon divorce.

Alimony and Child Custody

You also forfeit all your rights to alimony as soon as a judge signs your divorce judgment.

Child custody and support issues are independent claims from divorce in North Carolina that do not depend on marital status. State law requires couples to first attempt to mediate custody issues before bringing them to court.

If you are involved in or are thinking about filing for absolute divorce, it is important to have an experienced family law attorney guide you through what can be a very stressful process and advocate for your interests. The dedicated family law attorneys at Arnold & Smith, PLLC have years of experience handling divorce and child custody cases in and around the Charlotte region. Contact us today so that we can help defend your rights through this challenging time.