Divorce in Charlotte, North Carolina

In North Carolina, there are only two grounds for an absolute divorce: 1) Incurable insanity and 2) separation for the statutory period for a period of one year. Due to Incurable insanity being a very uncommon circumstance, most divorces are obtained through the separation of both parties for one year. To effectuate a divorce through the one year of requirement of separation, there are three requirements:

• Can I get an Annulment?
• Does it Matter Who is at Fault?
• What is the Divorce Procedure? Do I Need to File for Separation?
• What is Divorce From Bed and Board in North Carolina?
• Divorce From Bed and Board vs. Absolute Divorce in North Carolina?
• Is Common Law Marriage Recognized in North Carolina?
• What is Reconciliation? Will it Affect our Period of Separation?
• A valid and legal marriage,
• One party must be a resident of North Carolina for a minimum period of six months, and
• Both parties must be physically separated and reside in separate residences.
• Can I get an Annulment?
• Divorce From Bed and Board vs. Absolute Divorce in North Carolina?
• Does it Matter Who is at Fault?
• Is Common Law Marriage Recognized in North Carolina?

Obtaining a Divorce in North Carolina is a simple process; however, the procedural implications of not filing for Post Separation Support, Alimony, or Equitable Distribution are immense. In the event that you have a valid claim for Post Separation Support, Alimony, and/or Equitable Distribution and do not file for either or all of these actions prior to a judge entering into your divorce, you will have forever waived all rights to these actions. With this in mind, it is extremely important to consult with an experienced Divorce Attorney to properly plan your future when you are facing a divorce.

The two grounds in the statute, and what each one demands

In North Carolina, an absolute divorce is available on only two grounds, and both sit in Chapter 50 of the General Statutes. The first is one year’s separation under G.S. 50-6, which provides that marriages may be dissolved “on the application of either party, 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.” The second is incurable insanity under G.S. 50-5.1.

The incurable insanity ground requires that the spouses “have lived separate and apart for three consecutive years, without cohabitation”, that the incurable insanity of one of them was the reason for the separation, and that they are still living separate and apart by reason of that insanity; it also carries an evidentiary burden the separation ground does not. The statute contemplates several routes to proof: evidence that the spouse has been confined or examined for three consecutive years next preceding the bringing of the action in an institution for the care and treatment of the mentally disordered; evidence that the spouse was adjudicated insane more than three years before the action was instituted, that the insanity has continued without interruption since and that the spouse has not been adjudicated sane since; or evidence that the spouse was examined at least three years before the action by licensed physicians who are members of the staff of one of this State’s accredited four-year medical schools or a State-supported mental institution and found incurably insane, with a further examination by one or more of them after the action was instituted. Proof of incurable insanity must be supported by the testimony of two reputable physicians — one a staff member or the superintendent of the institution where the spouse is confined, and one a regularly practicing physician in the community where the spouses reside who has no connection with the institution. G.S. 50-5.1 also provides that where the insane defendant has insufficient income and property to provide for his or her own care, “the court shall require the plaintiff to provide for the care and maintenance of the insane defendant for the defendant’s lifetime”. The six-month residence requirement applies to this ground as well.

Because those are the only two grounds, adultery, desertion, cruelty and drug or alcohol misuse are not grounds for an absolute divorce in this State. They appear elsewhere in Chapter 50 — as grounds for divorce from bed and board under G.S. 50-7, and as marital misconduct bearing on alimony under G.S. 50-16.1A — but they neither create nor defeat a claim for absolute divorce.

Separation runs from the day the parties begin living apart

In North Carolina there is no petition, registration or filing that begins a separation. The period under G.S. 50-6 starts when the spouses in fact live separate and apart in different residences, with at least one of them intending the separation to be permanent. Nothing is lodged with the Clerk of Superior Court in Mecklenburg County to mark that date, and no order records it.

G.S. 50-6 settles what does not stop the period running: “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” What does stop it is a resumption of marital relations, which G.S. 52-10.2 defines as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances”, and which by its own terms excludes isolated incidents of intercourse.

Equitable distribution normally has to be asserted before the judgment of absolute divorce

In North Carolina, a judgment of absolute divorce cuts off the right to have marital property divided unless the claim is already on file. G.S. 50-11(e) provides that “an absolute divorce obtained within this State shall destroy the right of a spouse to equitable distribution under G.S. 50-20 unless the right is asserted prior to judgment of absolute divorce.” Two savings provisions sit alongside that rule, and both are narrow. The exception written into subsection (e) itself allows a defendant to bring an action or file a motion in the cause for equitable distribution within six months of the judgment where service of process was by publication under Rule 4 and the defendant failed to appear in the divorce action. G.S. 50-11(f) then provides that an absolute divorce by a court that lacked personal jurisdiction over the absent spouse, or lacked jurisdiction to dispose of the property, does not destroy the right to equitable distribution if an action or motion in the cause is filed within six months after the judgment of divorce is entered, and that the validity of such a divorce may be attacked in the equitable distribution action. Neither provision assists a spouse who was properly before the court and simply did not file in time.

The statute does not require the claim to wait for the divorce to be filed or for the year of separation to run. G.S. 50-21(a) allows equitable distribution to be filed “at any time after a husband and wife begin to live separate and apart from each other”, as a separate action, joined with other Chapter 50 claims, or as a motion in the cause. Filing does start a timetable of its own: under the same subsection the party first asserting the claim must prepare and serve an equitable distribution inventory affidavit within 90 days after service of the claim, and the opposing party must serve one within 30 days after service of that affidavit. Under G.S. 50-20(c) there is to be an equal division by using net value of marital property and net value of divisible property unless the court determines that an equal division is not equitable on the statutory factors. Under G.S. 50-21(b) marital property is valued as of the date of separation, while divisible property and divisible debt are valued as of the date of distribution.

Alimony and postseparation support survive the divorce only if they are pending

In North Carolina, alimony and postseparation support are separate claims from the divorce itself, and G.S. 50-11(c) preserves them where they are already before the court: a divorce obtained under G.S. 50-5.1 or G.S. 50-6 “shall not affect the rights of either spouse with respect to any action for alimony or postseparation support pending at the time the judgment for divorce is granted.” The same subsection adds that a judgment of absolute divorce shall not impair or destroy the right of a spouse to receive alimony or postseparation support, or affect any other rights, provided for under a judgment or decree rendered before or at the time of the divorce. G.S. 50-6 makes the point from the other direction, providing that a divorce under that section does not affect a dependent spouse’s alimony rights that have been asserted in the action or in any other pending action.

Entitlement turns on the definitions in G.S. 50-16.1A. A dependent spouse is one “actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse”, and a supporting spouse is the mirror of that. Under G.S. 50-16.2A(c), except when subsection (d) of that section applies, a dependent spouse is entitled to an award of postseparation support if, on the factors in subsection (b), the court finds that the resources of the dependent spouse are not adequate to meet his or her reasonable needs and the supporting spouse has the ability to pay; under subsection (d) the judge shall consider marital misconduct by the dependent spouse occurring prior to or on the date of separation in deciding whether to award postseparation support and in deciding the amount, and when the judge considers those acts the judge shall also consider any marital misconduct by the supporting spouse. Under G.S. 50-16.3A(a) the court shall award alimony on a finding that one spouse is a dependent spouse, that the other is a supporting spouse, and that an award “is equitable after considering all relevant factors”.

Fault cannot stop the divorce but can control the support claims

In North Carolina, fault cannot defeat an absolute divorce. G.S. 50-6 states that a divorce under that section “shall not be barred to either party by any defense or plea based upon any provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination.” Fault nevertheless controls the support claims. Under G.S. 50-16.3A(a) a court “shall not award alimony” where the dependent spouse participated in an act of illicit sexual behavior during the marriage and prior to or on the date of separation, and “shall order that alimony be paid” where the supporting spouse did so. Where the court finds that each of them participated in such an act in that period, alimony “shall be denied or awarded in the discretion of the court after consideration of all of the circumstances”.

Marital misconduct is defined in G.S. 50-16.1A and reaches well beyond adultery. It includes involuntary separation in consequence of a criminal act committed before the proceeding, abandonment, malicious turning out of doors, cruel or barbarous treatment endangering the life of the other spouse, indignities rendering that spouse’s condition intolerable and life burdensome, reckless spending of income or the destruction, waste, diversion or concealment of assets, excessive use of alcohol or drugs with the same effect, and wilful failure to provide necessary subsistence according to one’s means and condition so as to render the condition of the other spouse intolerable and life burdensome. The statutory condonation bar is narrower than that list. G.S. 50-16.3A(a) provides only that “any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court”; the other categories of marital misconduct carry no statutory exclusion for conduct that has been forgiven, although condonation may still bear on the weight a court gives them when it exercises its discretion under G.S. 50-16.3A(b).

Divorce from bed and board is a fault action that leaves the marriage intact

In North Carolina, a divorce from bed and board under G.S. 50-7 is a judicial separation rather than a dissolution. The court may grant it on the application of the party injured where the other spouse “abandons his or her family”, “maliciously turns the other out of doors”, “by cruel or barbarous treatment endangers the life of the other”, “offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome”, “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome”, or “commits adultery”.

Neither party may remarry on a bed and board judgment, because only an absolute divorce dissolves the bonds of matrimony under G.S. 50-11(a). Both actions carry consequences for estate rights. G.S. 31A-1(a)(1) names “a spouse from whom or by whom an absolute divorce or marriage annulment has been obtained or from whom a divorce from bed and board has been obtained”, and G.S. 31A-1(b) sets out the rights lost — rights of intestate succession in the other spouse’s estate, the right to claim or succeed to a homestead, the right to petition for an elective share, the right to a year’s allowance, and the right to administer the other spouse’s estate.

How a divorce filed in Mecklenburg County reaches judgment

In North Carolina, divorce, annulment, equitable distribution, alimony, child support and child custody are all heard in the district court division under G.S. 7A-244, which for a Charlotte case means the District Court in Mecklenburg County. Venue follows G.S. 50-3: “in all proceedings for divorce, the summons shall be returnable to the court of the county in which either the plaintiff or defendant resides.” That is subject to G.S. 50-8, which provides that if the complainant is a nonresident of the State the action shall be brought in the county of the defendant’s residence, with the summons served upon the defendant personally.

G.S. 50-8 also requires the complaint to be verified in accordance with Rule 11, to state that the plaintiff or the defendant has been a resident of North Carolina for at least six months next preceding the filing, and to set out “the name and age of any minor child or children of the marriage” or state that there are none. Under Rule 4(c) personal or substituted personal service must be made within 60 days after the date of issuance of the summons, though failure to serve within that time does not invalidate the summons. Under Rule 12(a)(1) a defendant serves an answer within 30 days after service of the summons and complaint.

Judgment does not follow automatically from silence. G.S. 50-10 provides that the material facts in a complaint asking for a divorce or an annulment “shall be deemed to be denied by the defendant”, and that no judgment may be given for the plaintiff until those facts have been found by a judge or a jury. G.S. 50-10(d) applies Rule 56 to absolute divorce actions, so an uncontested case is commonly resolved on affidavit or verified pleading. G.S. 50-10(e) allows the clerk of superior court to enter judgment in a narrow class of cases where absolute divorce, or absolute divorce and resumption of a former name, is the only claim, the defendant has defaulted for failure to appear, has answered admitting the allegations or has filed a waiver of the right to answer, and is not an infant or an incompetent person. A former name can be dealt with in the same proceeding: G.S. 50-12 allows a person whose marriage is dissolved by a decree of absolute divorce to apply to the clerk of court of the county in which that person resides or in which the divorce was granted, and authorizes the court to incorporate an order permitting the resumption of a former surname in the divorce decree where the point is raised in the pleadings.

Separation agreements, and what reconciliation does to them

In North Carolina, a separation agreement is a contract rather than a court order, and G.S. 52-10.1 sets its formal requirements: it must be in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b), and that officer must not be a party to the contract. Executed that way, it is “legal, valid, and binding in all respects” so long as it is not inconsistent with public policy.

Reconciliation unsettles it. Under In re Estate of Adamee, 291 N.C. 386 (1976), reconciliation voids the executory provisions of a separation agreement — those by which a party binds himself to do or not to do a particular thing in the future — because living separate and apart forms part of the consideration for the agreement. Provisions already executed, such as a completed transfer of property, generally stand. Reconciliation also restarts the one-year period under G.S. 50-6 and moves the date of separation, which in turn moves the classification line in G.S. 50-20 and the valuation date in G.S. 50-21(b).

Custody and child support are not extinguished by the divorce

In North Carolina, custody of a minor child is awarded to the person, agency, organization or institution “as will best promote the interest and welfare of the child” under G.S. 50-13.2(a). In making that determination the court shall consider all relevant factors, including acts of domestic violence between the parties, the safety of the child and the safety of either party from domestic violence by the other, and shall make written findings of fact that reflect the consideration of each of those factors. Between the parents, whether natural or adoptive, the statute applies no presumption as to who will better promote the child’s welfare.

Unlike equitable distribution and alimony, custody and child support are not lost when a judgment of absolute divorce is entered. They can be raised, modified and enforced afterwards, which is why the cut-offs in G.S. 50-11(c) and G.S. 50-11(e) reach only the property and support claims that depend on the marriage itself.

Common questions

Questions people ask

• Can I get an Annulment?Obtaining an Annulment in North Carolina is not quite as easy as many individuals presume. North Carolina doesn’t…
• Divorce From Bed and Board vs. Absolute Divorce in North Carolina?In North Carolina, two types of Divorce exist: Absolute divorce and Divorce From Bed and Board. It is easy to confuse…
• Does it Matter Who is at Fault?In North Carolina, an absolute divorce can only be effectuated by individuals who are residents of North Carolina for…
• Is Common Law Marriage Recognized in North Carolina?Unlike many states, North Carolina does not recognize common law. However, under the Full Faith and Credit Clause of…
• What is Divorce From Bed and Board in North Carolina?In North Carolina, a Divorce From Bed and Board, also known as a mens et thoro, is the oldest form of Divorce. In its…
• What is Reconciliation? Will it Affect our Period of Separation?In North Carolina, Reconciliation is the resumption of marital relations and voluntary renewal as husband and wife,…
• What is the Divorce Procedure? Do I Need to File for Separation?Filing for Separation is not required in North Carolina and a court will use the date that you are physically…

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.