Raleigh Divorce & Separation: Complexities of Divorce

Divorce is often difficult and challenging, and the firm is committed to helping clients navigate their way through the divorce process. In North Carolina, the most common manner to obtain a divorce is after a period of a one-year’s separation. Under N.C. Gen. Stat. § 50-6, our North Carolina “no-fault” divorce statute, an absolute divorce may be granted “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.”

A spouse who seeks a divorce must show (1) he or she has lived in a separate dwelling from the other spouse for a period of at least one year; (2) the parties did not resume marital relations during that one-year separation; and (3) at least one spouse had the intent to end the marriage when the separation first occurred. In addition, one party to the action must have resided in North Carolina for at least six months prior to filing the divorce action.

After the one-year period of separation has run, the husband or wife may file a complaint for an absolute divorce. The defendant must be served with a copy of the divorce complaint and summons and has 30 days to respond. The case will be calendared for a hearing and the court

may enter a judgment pursuant to Rule 56 (summary judgment) or at trial. If your attorney files a Rule 56 motion, the party who filed the complaint does not have to go to court for the divorce hearing. Otherwise, the plaintiff will testify to demonstrate to the court that all of the requirements to obtain the absolute divorce have been met. The only proof required to show the one-year separation is the plaintiff’s testimony

It is important to understand that filing the divorce complaint only changes the legal status of the parties and does not address other issues often involved in divorce involving money and property, such as alimony and property division. An absolute divorce may be granted prior to a determination of property division and alimony. However, the failure to file a claim for alimony and equitable distribution (property division) prior to the entry of an absolute divorce judgment will bar the right to assert those claims. This means a spouse who seeks an equitable distribution of property and alimony loses the right to assert these claims if an absolute divorce judgment is granted prior to filing such claims. Thus, for clients seeking alimony and property division, it is vitally important that these claims are filed prior to entry of the absolute divorce judgment.