Is North Carolina a No-Fault State for Divorce?
North Carolina was one of the earliest U.S. states to modify its laws to allow a married couple to get a divorce without proving fault on the part of one spouse or the other. In 1965, North Carolina began allowing couples to end their marriages based simply on one spouse’s request for a divorce after one year of separation, according to the National Council on Family Relations.
During the 1970s, 37 adopted new laws allowing couples to divorce under a no-fault system. Today, every state allows no-fault divorce. However, some states, including North Carolina, also allow fault-based legal separations when a spouse’s behavior makes continuing the marriage harmful to the other.
Either way, there are legal requirements that can become complicated. If your divorce is contested, the dissolution of your marriage can be financially ruinous to you if not handled correctly.
If you are considering filing for divorce in Jacksonville, N.C., the family law attorneys and staff at The Law Offices of John Drew Warlick, P.A., can protect your rights while guiding you through the process of separation and the divorce process as smoothly as possible. We offer a free initial consultation in divorce cases.
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What Are The Basics of a No-Fault Divorce in North Carolina?
A married person in North Carolina may seek a divorce from their spouse when:
- The couple has been separated – living in separate homes – for one year.
- At least one spouse intends for the separation to be permanent.
- At least one spouse has been a North Carolina resident for six months prior to either of them filing papers for divorce.
During the 12-month separation, if the couple temporarily reconciles, the required separation period must start again. This does not necessarily apply to isolated instances of marital relations. The judge will consider a variety of factors to determine whether the spouses have met the separation requirement or have represented themselves to the public as a married couple within the prior year.
During the year’s separation, the couple should negotiate a separation agreement detailing how their assets will be divided and who is responsible for debts. One or both spouses should formally claim the right to an equitable division of marital assets between the two of them. The court must approve how assets and debts acquired during the marriage are split based on numerous factors set forth by North Carolina law.
If a divorcing couple cannot present a separation agreement that outlines an equitable division of marital assets, the judge will likely tell them to go back to the negotiating table and return with an agreement. If they are deadlocked and cannot come to an agreement, the judge will decide who takes legal possession of financial accounts, real estate, personal property, and debts the couple has.
When Does Fault Play a Role in a North Carolina Divorce?
In a bad marriage where there is adultery, abuse, or abandonment, one spouse may seek a divorce from bed and board. This is a type of court-ordered separation that does not end the marriage. A divorce from bed and board is not a divorce despite its name.
To obtain a divorce from bed and board, a married person must prove to the court that their spouse has done at least one of the following:
- Abandoned them
- Forced them out of the marital home
- Subjected them to cruel and/or threatening treatment, humiliation, or other indignities
- Excessively used alcohol or drugs to a point that has made their condition intolerable and life burdensome
- Committed adultery
With a divorce from bed and board granted, the harmed spouse may file legal motions seeking spousal support (alimony), child custody, child support, and equitable distribution of marital property.
To remarry, however, a spouse who has been granted a court-ordered separation would need to obtain an order for absolute divorce. North Carolina only allows for no-fault divorce, which requires one year of separation.
After filing the divorce petition, it may take up to two weeks for divorce papers to be served on the other spouse. Once the other spouse has been served, the complainant must wait 30 days before asking the court to hear the case. The case should then be heard within 30 days of the request for a hearing. The hearing should be a simple statement of the facts followed by the judge signing the divorce order.
Fault in Divorce and Seeking Alimony or Post-Separation Support
If you need alimony or post-separation support (a temporary payment during separation), you must negotiate the terms before obtaining an absolute divorce.
Once an order for absolute divorce is granted without provisions for spousal support or your share of marital assets, you give up the right to them forever.
Absolute divorce does not resolve issues of child custody and child support. Though usually handled during divorce proceedings, these are separate legal issues that require separate court orders.
A judge will typically grant post-separation support or alimony if the requesting spouse demonstrates financial need and that she or he was financially dependent on the other spouse during the marriage. The court may also consider marital misconduct in its decision, and any evidence of post-separation misconduct may be used as evidence of marital misconduct.
Misconduct includes:
- Reckless spending of either spouse’s income
- Concealment, diversion, destruction, or waste of assets
- Willful failure to provide necessary subsistence they have the means to provide.
Why You Should Contact a North Carolina Divorce Lawyer
Anytime you go to court to request an order for a legal separation or divorce, alimony, post-separation support, your spouse may present evidence to contest your request. The Law Offices of John Drew Warlick, P.A., has handled cases in Jacksonville, Camp Lejeune, and surrounding North Carolina communities for three generations. Trust us to stand up for your interests if your marriage is coming to an end.
You have rights in no-fault divorce and legal separation proceedings. Contact our Jacksonville divorce lawyers today for a free review of your case. Let us put our three generations of experience to work for you.
