Do I Have to Be Separated Before a Divorce If My Husband Cheated in North Carolina?

by Beverly Bird

North Carolina is one of the easiest states in which to get a divorce, but at the same time, some of its statutes can complicate the divorce process. Unlike most states, you and your spouse don't have to resolve all issues to end your marriage, but you must live separate and apart from each other for at least a year to get a traditional divorce. If your spouse is guilty of marital misconduct such as adultery, however, North Carolina offers an alternative to the one-year waiting period.

Absolute Divorce

North Carolina calls a traditional divorce an "absolute" divorce. It ends your marriage. What it doesn't do is divide your marital property, award spousal support, address custody or provide for child support. If you and your spouse can't come to an agreement on these things, the court will decide them for you, but you must file a separate legal proceeding, and you must reserve the right to do so before your divorce is final. If you want an absolute divorce, the court doesn't care that your husband cheated. There are only two grounds for absolute divorce in North Carolina: separation for at least a year or incurable insanity. Because most spouses aren't legally or clinically insane, the latter is very rarely used.

An Option

North Carolina's alternative to an absolute divorce is a divorce from bed and board. The term is something of a misnomer, however. A divorce from bed and board is merely a legal separation; it doesn't end your marriage. If you elect this option, you must file a petition with the court, just as you would if you were seeking an absolute divorce. However, in this case, you can – and must – file on fault grounds. One of these grounds is adultery, so you can establish through this proceeding that your husband cheated. North Carolina courts can consider marital misconduct when deciding issues of custody, support and property division, so this may affect the outcome of your final divorce. Unlike with an absolute divorce, you don't have to file a separate lawsuit to address these things.

Immediate Relief

If you opt for an absolute divorce, you may not be able to support yourself and your children while you wait out North Carolina's one-year separation period. If your husband agrees to pay you support in a marital settlement agreement, and if you can resolve all other issues of your separation as well, you can bide your time for 12 months and get a very easy divorce. A separation agreement is enforceable as a contract. Otherwise, a divorce from bed and board can offer you immediate relief. A judge can issue orders regarding support, custody and use of property soon after you file your petition.

Disadvantages

The downside to filing for a divorce from bed and board is that you must prove your grounds at trial. In North Carolina, you can elect to have a judge decide your case or you can ask for a jury. Either way, your husband has a right to defend himself against your allegations – and he might, given the implications regarding support, custody and property division. He can legally argue that you forgave his adultery because you continued to live with him after you found out about it. In legal terms, this is condonation. He could also argue that your own behavior drove him to the affair. This is connivance; it makes you just as guilty of marital wrongdoing as your husband.

Paving the Way for Divorce

If you elect to file for a divorce from bed and board, this separation decree can pave the way for the terms of an absolute divorce after you meet the one-year waiting requirement. The court might carry the terms of your first decree over into the second if your husband doesn't contest it and give a very good reason why this shouldn't occur. You're not obligated to file for an absolute divorce later, however. Your decree for a divorce from bed and board doesn't expire, so it will govern your situation indefinitely if you don't want to remarry or completely terminate your marriage for other reasons.