Absolute Divorce in North Carolina

By Erika Johansen

Most divorces in North Carolina are absolute divorces. Although North Carolina offers a second form of divorce, called a "bed and board" divorce, only the absolute divorce permanently severs the marriage. Further, all issues of the marriage must be settled before the court will finalize an absolute divorce.

Absolute Divorce

North Carolina allows for no-fault divorce, meaning that either party can ask for a divorce even if there's been no wrongdoing in the marriage. Parties can seek an absolute divorce in North Carolina on two grounds. The first is that one party in the marriage is incurably insane, which requires evidence of insanity and that the parties have lived apart for three years. The second, more common grounds for divorce is that the two parties have lived in separate residences for an entire year. At least one of the parties must also prove residence in North Carolina for the six months prior to initiating absolute divorce proceedings, so that the North Carolina court has jurisdiction to hear the case.

Separation Requirements

The requirement of a year's separation has specific rules. Generally, a court will require proof that the two spouses have lived in separate residences for 12 months and that at least one party intended permanent separation. If the court finds that the spouses resumed their marriage during this period, however, the 12-month period will start over on the day the attempt at reconciliation broke off. While North Carolina law once recognized sexual relations as proof of resumption of marriage, the current law looks at the situation as a whole to decide whether the two spouses have actually attempted to renew their marriage. Isolated sexual contact alone will generally not restart the 12-month clock.

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Bed and Board

Absolute divorce is different from the other type of North Carolina divorce: divorce from bed and board. This second type of divorce requires some showing of fault by one spouse, such as abandonment, adultery or substance abuse, among others. The spouse without fault can then petition the court for judicial separation, effectively asking the court to kick the offending spouse out of the family residence. However, resuming cohabitation after a bed and board divorce can nullify the divorce under North Carolina law. Absolute divorce, by contrast, severs all marriage rights.

Finalizing the Divorce

A North Carolina absolute divorce decree will not be finalized until the court has dealt with all issues of the marriage, such as decisions about custody of children and awards of child and spousal support. However, under North Carolina General Statutes, Section 50-11, once an absolute divorce has been finalized, the marriage is effectively ended and either party is now free to remarry. However, an absolute divorce decree won't affect any financial support rights granted to one or both parties as part of the divorce.

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References

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