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Divorce, Child Custody, Child Support, and Alimony in North Carolina
Absolute Divorce in North Carolina is the legal ending of your marriage so that you may marry another person. Absolute Divorce in North Carolina alone does not address the issues of child custody, child support, property division or alimony. In order to address those issues, the individual must file a separate action asserting those rights.
To obtain an Absolute Divorce, you must meet the requirements as set out in the North Carolina statutes. The requirements are as follows: (1) one party must be a resident of the state of North Carolina for at least six (6) months prior to filing and either one of the two conditions must be met: (2a) the parties must have lived separate and apart from one another for one year or (2b) one of the parties must prove incurable insanity on the other party.
Residency Requirements for North Carolina Divorce
In North Carolina, one of the parties must be a resident of the state six (6) months prior to filing the lawsuit.
Residency is used synonymously with domicile and the courts have interpreted that to mean that an individual must have a residence in North Carolina and have the intent to remain here indefinitely/permanently.
Separate and Apart
Regarding divorce in North Carolina, North Carolina’s public policy is to encourage individuals to work out their differences and stay married to one another. North Carolina is a pro-marriage state.
Therefore, North Carolina has a strict one year requirement that must be met before individuals can obtain a divorce. The statute requires that the parties “remain separate and apart with the intent not to resume the marital relationship.”
North Carolina courts have shed some light on what it means to be separate and apart. Unfortunately, sleeping in separate beds or in different parts of the house are not enough.
The parties must be in different homes for the period to begin to run. It must be one full year. Therefore, the parties must wait a year and a day in order to file for an absolute divorce.
There has been some debate about whether isolated incidents of sexual intercourse during the separation period negates the separation period and starts the one year period over again. North Carolina case law has shed some light on the issue and has said that these isolated incidents will not, as an absolute rule, negate the separation period.
Instead, the date of separation will be determined by all of the surrounding circumstances and on a case by case basis, taking into consideration any isolated incidents.
If a husband and wife have lived separate and apart for three years because of incurable insanity, the sane spouse may file for divorce. If the legally determined insane person is living with the sane spouse, on a trial basis only, this will not negate the element of living separate and apart.
The court will not assume that the parties have cohabitated in this situation. The determination of whether one person is incurably insane is a very labor intensive process.
Consequences of Absolute Divorce
The consequences of Absolute Divorce, if you have not addressed your marital estate prior to the Absolute Divorce, are alimony is barred, and property goes to the person with title.
If an Absolute Divorce is finalized and you have not raised property and/or alimony issues properly before the Court prior to the finalization, then you no longer are able to raise these concerns before the Court.
Therefore, it is very important if you intend to assert these claims, that you do so before an Absolute Divorce becomes final (ie. the Judge signs an Order for Absolute Divorce).