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The Basics to Obtaining a Divorce in North Carolina

Q: My Spouse and I Have Been Separated for 6 months, Can I Get a Divorce Now?

A: No.  Divorces in North Carolina are governed by Chapter 50 of the North Carolina General Statues.  Specifically, N.C. Gen. Statute § 50-6 states in relevant part that a lawfully married Husband and Wife may dissolve their marriage without cause if either party files an application for divorce and the reason for dissolution of the marriage is that the parties have lived separate and apart for at least one year with the intent to dissolve said marriage; and that either Husband or Wife have lived in the State of North Carolina for at least 6 months prior to filing the divorce application.  It should be noted that if the parties engage in isolated incidents of sexual intercourse while they are separated, such behavior will not break the one year separation period requirement for divorce based upon the “one-year separation.”

Q: Does North Carolina Recognize Fault Based Divorce?

A: Yes. North Carolina has Divorce from Bed and Board.  N.C. Gen. Statute § 50-7 lists the grounds that one must show in order for the court to grant their application for a divorce from bed and board.  A Husband or Wife seeking a divorce from bed and board must show that their spouse committed the following:

a)   Abandons his or her family.

b)   Maliciously turns the other spouse out of doors.

c)   By cruel or barbarous treatment endangers the life of the other spouse.

d)   Offers such indignities to the person of the other spouse as to render that spouse’s condition intolerable and life burdensome.

e)   A spouse excessively uses alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.

f)    A spouse commits adultery

 

Q: What are Some of the Effects of an Absolute Divorce?

A: First, after an absolute divorce judgment is entered, the parties’ rights arising out of the marriage cease and either party is free to marry again.  Secondly, an absolute divorce judgment does not render illegitimate any child in esse, or begotten of the body of the wife during coverture. Third, an absolute divorce may not affect the rights of either spouse with respect to any action for alimony or post-separation support if their claim is pending at the time the divorce judgment is granted. Fourth, an absolute divorce judgment does not impair or destroy the right of a spouse to receive spousal support, including post-separation support or alimony nor does it affect any other rights provided for such spouse under any judgment or decree of a court rendered before or at the time the absolute divorce judgment is entered.

 

In addition, A divorce obtained in a jurisdiction other than the State of North Carolina in an action in which the jurisdiction over the dependent spouse was not obtained shall not impair or destroy the right of that dependent spouse to alimony as provided by the laws of North Carolina.  But an absolute divorce obtained within the State of North Carolina destroys the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to the entry of the absolute divorce judgment; however, the defendant may bring an action or file a motion in the cause for equitable distribution within six months from the date of the judgment in such a case if service of process upon the defendant was by publication pursuant to N.C. Gen. Stat. 1A-1, Rule 4 and the defendant failed to appear in the action for divorce.  Finally, if a court enters an absolute divorce but lacked personal jurisdiction over the Husband or the Wife or lacked jurisdiction to dispose of the property of the parties, such that divorce judgment does not destroy the right of a spouse to equitable distribution under G.S. 50-20 if an action or motion in the cause is filed within six months after the judgment of divorce is entered.

For more info visit http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_50/Article_1.pdf

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