What is the difference between a divorce and a separation?
Separation occurs when a husband and wife move into separate residences and at least one of the parties has the intention of remaining in separate residences. Once separation has occurred, it is possible for the parties to draw up a Separation Agreement, where they are able to lay out terms for child support, custody, alimony, and property division. However, be very careful before signing a Separation Agreement with your spouse. Even if you are both well intentioned, if the document has not been reviewed by a lawyer, what you agreed to and what you signed may not be the same thing, and the Court may choose to honor the written agreement and not what you had intended. The only issue that cannot be resolved by a Separation Agreement is the actual divorce. Our firm can assist you with drafting a Separation Agreement to be presented to your spouse, or in reviewing an agreement that your spouse has presented to you, or in helping you mediate an agreement together.
North Carolina law requires that parties be separated for one year before they may file for a divorce. A divorce is the legal termination of a marriage. A divorce itself does not deal specifically with custody, support or property, so if you have concerns about any of these issues, make sure that you have taken steps towards addressing them before, or at the same time you file for your divorce. In some instances, such as with spousal support or property division, if you do not already have a claim pending when your divorce is granted, you may lose your right to pursue those claims in the future. For more specific information as to how to handle child custody, property, and support, please refer to the sections referencing those topics, or give us a call.
North Carolina law recognizes two grounds for divorce:
One year separation-Parties must have lived in separate residences for one year with the intention of remaining separated. A claim of having separate bedrooms does not sufficiently satisfy this requirement. It is not necessary to provide any documentation to affirm your separation date, only that you state your separation date under oath.
Incurable insanity-This far rarer occurrence requires that Husband and Wife live separate and apart for three consecutive years by reason of incurable insanity. If the mentally ill spouse has been released on a trial basis into the care of the sane spouse, it is not considered cohabitation or as terminating the status of living “separate and apart”.
Under North Carolina law, it is not necessary to prove fault, such as irreconcilable differences, abandonment, et cetera, against any party in order to obtain a divorce.
It is not necessary for both spouses to consent to a divorce. As long as the parties have been living separate and apart for one year, it is possible to obtain a divorce.
After you have been legally separated for a year, you may file for a divorce. After submitting a Complaint for Absolute Divorce to the Court, you must serve your spouse with a copy of the Complaint and a Civil Summons. The Court allows thirty days to pass from the time that your spouse actually receives the paper work so that they may have time to respond if they like. Possible responses might include counterclaims for alimony, support, child custody, or equitable distribution, but the only thing that would really delay the divorce proceedings would be if there is a dispute over the date of separation, as parties must be separated for one year. After the thirty days have passed, it is possible to obtain a court date to have the divorce judgment entered. The soonest possible date may vary from county to county, and again, the Court requires that your spouse be informed of the Court date, so there must be enough time before the Court appearance for your spouse to receive notice (at least ten days’ notice). Once the case comes before the Judge, your divorce may be granted and become effective on that day. Other issues about property, support, and custody may not necessarily be resolved until a later date, but once the Divorce Judgment is entered, the marriage is legally dissolved.
It is not possible to get remarried until after an Absolute Divorce has been granted. While many people start dating again while they are separated, technically until you have received a divorce decree from a Judge, you are still married; dating while still legally married may cause complications with settling other concerns such as custody or spousal support, or may make the other party less willing to negotiate.
Usually not. Our firm often files Motions for Summary Judgment if there are no contested issues. This allows one of our attorneys to appear on your behalf, which prevents you from having to appear in Court. As it is such an important event for many people, we can also arrange for you to attend, if you desire.
Fault is when one party has done something that is considered injurious to the other. While it is not necessary to prove fault in North Carolina to obtain an absolute divorce, it can be a factor when determining other elements of separation, such as alimony. North Carolina law recognizes the following acts as marital “fault”:
• Illicit sexual behavior
• Separation as a result of a criminal act
• Malicious turning out of doors
• Cruel or barbarous treatment endangering the life of the other spouse
• Reckless spending or the destruction or concealment of assets
• Excessive use of alcohol or drugs
Criminal conversation is a lawsuit based on sexual intercourse between a married party and someone other than that party’s spouse. The person bringing the lawsuit (the Plaintiff) must only prove that there was an act of intercourse and that the Plaintiff is married to the adulterous spouse. Criminal conversation claims can result in monetary rewards or at times can be used as leverage in other negotiations. It is not a valid defense to say that the marriage was unhappy, that the Defendant did not know about the marriage, that the Plaintiff had been unfaithful, or that the parties were separated.
Alienation of affection does not require any proof of extramarital intercourse, but requires other claims that can be difficult to prove. The Plaintiff must demonstrate that there was some genuine love and affection between the spouses, that said love was in some way destroyed by the third party Defendant and that malicious conduct on behalf of the third party Defendant contributed to the relationship’s deterioration.
Divorce from bed and board is a claim based on the fault of one spouse whereby the injured spouse can ask the Court to remove the spouse at fault from the parties’ residence. A claim for divorce from bed and board must establish the grounds of fault and allege that the injured spouse did not provoke the other spouse’s misconduct. It is basically a judicial separation and is sometimes used when parties cannot agree to separate, such as if one spouse refuses to leave the marital home.
When you obtain your divorce, North Carolina law does permit you to change your name to one of the following:
- Your maiden name
- The name of a prior deceased husband
- The name of a prior living husband, if you have children with that last name
If you have the Court handle your name change at the time of your divorce, it will be at no extra cost. Should you choose to later change your name to one of the above listed options, you may file a petition for a name change with the office of the clerk of court and have it changed, but you will be responsible for paying a filing fee.
Annulments are not very frequent in North Carolina because they apply to only very limited situations. Some examples where an annulment may be granted are instances where the parties are relatives closer than first cousins, one of the parties is under the age of sixteen, one of the parties is still legally married to another, one of the parties is physically impotent, or if one of the parties is deemed incapable of understanding the marriage vows.
It is very important to understand that if you have been granted an absolute divorce and do not have a Court Order or an action pending in regards to alimony and equitable distribution, you lose your right to assert those claims later. The only exception is that a party who was served by publication and did not appear in Court for the divorce may file for equitable distribution within six months of the divorce decree. A divorce judgment may not be later amended or modified to allow for a delinquent claim for alimony or equitable distribution, so be absolutely certain that you have addressed both of these issues BEFORE you obtain your divorce. Even if they have not been resolved, having filed a claim will preserve your future rights.
It is not necessary to have any of the other issues of your separation settled before you obtain your divorce. While with equitable distribution and alimony you have to have a pending claim in order to preserve your rights, it is not necessary have a claim pending for child custody and child support by the time the Court grants your divorce. As long as you have been separated for a year, you may have your divorce.
Common law marriage, the process by which the state will recognize a couple as legally married based on prolonged cohabitation as man and wife, is not recognized in the State of North Carolina. In our State, parties that are living together, but not married, are not entitled to the same legal rights regarding property division and support as parties that are lawfully married. There may be other laws that will protect your property or other interests.