Many times, clients come to us after having been separated for the one year required by law to obtain a divorce having never fully addressed the important issues. In North Carolina divorce is essentially an administrative action. All it does is legally end a marriage. A divorce is not designed to resolve the issues that accompany the end of a marriage. Issues of property division, alimony, child custody are resolved in one or more separate court actions or through private agreement, generally referred to as a “Separation Agreement.” Once an absolute divorce is granted, it may be almost impossible to go back and request that the court divide marital property or award alimony or spousal support. Those issues should be addressed prior to the entry of a divorce judgment. Child custody and child support issues can be raised at anytime.
In North Carolina, an absolute divorce may be granted on either of two grounds: one year's separation and incurable insanity. Obtaining a divorce based on incurable insanity requires a minimum three-year separation and also requires that evidence be given by specified experts as to the spouse's insanity. The insanity basis for divorce is now little used.
The “no fault” divorce statute in North Carolina provides that “marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.”
The requirements for obtaining an absolute divorce on the ground of one year's separation are as follows:
1. Either the plaintiff or the defendant must have resided in North Carolina for at least six months immediately preceding the institution of the divorce action. The six-month residency requirement is jurisdictional. In the event the requirement is not met, the court would not have jurisdiction to try the action and any decree rendered would be void. One need not be a citizen of the United States in order to establish residency or domicile within North Carolina for the purpose of divorce actions.
2. The parties must have lived separate and apart for at least one year prior to filing the divorce action. It is not sufficient for the parties to have slept in separate bedrooms in the same residence, with a discontinuation of sexual relations. The parties must actually reside in different households for at least one year prior to the institution of the action. Additionally, at least one party must intend, at the time of separation, that the separation be permanent. The resumption of the marital relationship will “toll” the separation period; however, isolated incidents of sexual intercourse between the parties do not.
Either party may file an action for absolute divorce. For a complaint for divorce to be valid, it must be properly verified at the time it is filed. Service of the summons and complaint must be in compliance with the North Carolina Rules of Civil Procedure. The defendant typically has 30 days from the date of service of summons and complaint upon him or her to file answer or other responsive pleading. A defendant can also move for an additional 30-day extension of time. In cases where service has been by publication, defendant has 40 days to file an answer. Upon the expiration of the applicable waiting period, the case may be calendared for hearing.
The court may enter judgment either upon non-testimonial, verified evidence pursuant to Rule 56 (summary judgment) or upon a plaintiff's appearance and testimony at court proving the allegations of the complaint. In summary judgment cases, only the attorney needs to appear.
Although a relatively simple process, the effects of the entry of a judgment of absolute divorce are significant. First, the failure to assert a claim for equitable distribution prior to the entry of a divorce judgment will generally bar the right to assert an equitable distribution claim. Likewise, the failure to assert an alimony claim prior to entry of a divorce judgment, and failure to have such an action pending at the time the divorce is granted, will bar the right to assert a claim for alimony. In other words, if your claims for property division and spousal support have not been properly asserted prior to divorce, your rights could be lost.