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 separated from your spouse as the date of separation. There are the rare times when individuals will litigate the date of separation. These issues usually only arise when a spouse is seeking immigration status and is required to be married for a specific amount of time or when the net worth of a large estate is fluctuating in a volatile market.

To effectuate an absolute divorce, separated parties must wait until they have been separated for one entire year before filing a Complaint for Divorce. In Charlotte-Mecklenburg County, only judges will enter a Divorce Judgment; however, a clerk is empowered through North Carolina Statute and some neighboring counties do allow a clerk to enter a Divorce Judgment.

If a Judge is required to enter a Divorce Judgment in your county, on the 366th day, a complaint will can be filed, and at that point, the opposing party has thirty days to Answer the Complaint. Due to the fact that the only issue of controversy that may rise in an Absolute Divorce is the length of separation, the defendant usually need not respond to the Divorce Complaint. Once the Defendant allows the thirty days to lapse, the Plaintiff may then file for a Summary Judgment and a Judge may enter the Divorce Judgment without either party being present.

The date of separation is a fact, not a filing

In North Carolina, nothing is filed to begin a separation and no court records the date it happened. The period in G.S. 50-6 runs from the point at which the spouses in fact live separate and apart in different residences, with at least one of them intending the separation to be permanent. There is no register, no application and no certificate.

Where the date is disputed, it is proved like any other fact. G.S. 52-10.2 supplies the test for whether a separation has been interrupted, defining resumption of marital relations as “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances”, and excluding isolated incidents of sexual intercourse. G.S. 50-6 says the same of the divorce period: isolated incidents “shall not toll the statutory period required for divorce predicated on separation of one year.”

What the complaint has to contain

In North Carolina, G.S. 50-8 sets the content of a divorce complaint and it is short. The complaint must be verified in accordance with Rule 11. It must state that the complainant or the defendant has been a resident of North Carolina for at least six months next preceding the filing of the complaint. And it must set forth “the name and age of any minor child or children of the marriage”, or state that there are none.

The section also requires an allegation that the facts set forth as grounds for divorce have existed to the plaintiff’s knowledge for at least six months before filing, but excepts the one-year separation ground from that requirement. Because fault is not an element under G.S. 50-6, the complaint does not plead conduct. It pleads a marriage, a date of separation, the elapse of a year, and residence.

Where the case is filed and heard

In North Carolina, divorce belongs to the district court division. G.S. 7A-244 makes the district court the proper division, without regard to the amount in controversy, for actions for annulment, divorce, equitable distribution of property, alimony, child support, child custody and the enforcement of separation or property settlement agreements between spouses. A Charlotte case is therefore heard in the District Court in Mecklenburg County.

Venue starts with 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.” Where both spouses remain North Carolina residents, either party’s county of residence will therefore do. Two qualifications sit on top of that. G.S. 50-8 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 — so a plaintiff who has left North Carolina cannot rely on a county he or she no longer lives in. And G.S. 50-3 itself provides that where an action under Chapter 50 for alimony or divorce is filed in a county in which the plaintiff resides but the defendant does not, both parties being residents of this State, and the plaintiff afterwards removes from the State and ceases to be a resident, the action may be removed on the defendant’s motion — before or after judgment — to the county in which the defendant resides, and the judge upon such motion shall order the removal.

Service, and the defendant’s time to respond

In North Carolina, the summons and complaint must be served on the defendant under Rule 4 of the Rules of Civil Procedure, and under Rule 4(c) personal or substituted personal service must be made within 60 days after the date of the issuance of the summons. Failure to serve within that time does not invalidate the summons, but the action has to be kept alive: Rule 4(d) allows the plaintiff either to secure an endorsement from the clerk extending the time, or to sue out an alias or pluries summons, within 90 days after the issuance of the summons or the date of the last prior endorsement. Where neither is done within that period, Rule 4(e) provides that the action is discontinued as to any defendant not then served, and a later summons or endorsement commences the action as to that defendant on the date it issues.

Once served, the defendant serves an answer within 30 days after service of the summons and complaint under Rule 12(a)(1). Where a spouse cannot be located after due diligence, service by publication under Rule 4 is available, and G.S. 50-11(e) recognizes it expressly by allowing a defendant served in that way, who failed to appear, six months from the judgment to bring an equitable distribution claim.

A defendant in an absolute divorce action frequently has nothing to plead. Fault is not in issue under G.S. 50-6, and the only live questions are the length of the separation and the residence requirement. The important consideration for a defendant is usually not the divorce itself but the claims that the divorce will cut off.

How the judgment is entered

In North Carolina, silence from the defendant does not by itself produce a judgment. G.S. 50-10 provides that the material facts in every complaint asking for a divorce or an annulment “shall be deemed to be denied by the defendant”, and that no judgment shall be given in favor of the plaintiff until those facts have been found by a judge or a jury.

G.S. 50-10(d) applies Rule 56 to actions for absolute divorce, so where no genuine issue of material fact remains the court finds the facts and may enter judgment on non-testimonial evidence presented by affidavit, verified motion or other verified pleading. That is the mechanism by which an uncontested divorce is commonly entered without either party giving oral evidence.

G.S. 50-10(e) provides a further route. The clerk of superior court, upon request of the plaintiff, may enter judgment where the plaintiff’s only claim is absolute divorce, or absolute divorce and the resumption of a former name, the defendant has been defaulted for failure to appear, has answered admitting the allegations, or has filed a waiver of the right to answer, and the defendant is not an infant or an incompetent person. The word is “may”, and practice on the use of that route varies between counties.

The claims that must already be on file

In North Carolina, this is the part of the procedure that cannot be undone. 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 follow, and they are the whole of what the statute allows after the event. Subsection (e) gives a defendant six months from the judgment to bring an action or file a motion in the cause where service of process was by publication under Rule 4 and the defendant failed to appear. G.S. 50-11(f) gives six months from entry of the judgment where the absolute divorce was granted by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, and allows the validity of that divorce to be attacked in the equitable distribution action — which is the provision that matters after an out-of-State or ex parte divorce. G.S. 50-11(c) preserves alimony and postseparation support where an action was pending when the divorce judgment was granted.

Neither claim has to wait for the year 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, and then requires the party first asserting the claim to serve an equitable distribution inventory affidavit within 90 days after service of the claim, with 30 days for the other party to respond in kind. Postseparation support under G.S. 50-16.2A is available on the same footing, and custody under G.S. 50-13.2 and child support are not cut off by the divorce judgment at all.

What the judgment does and does not change

In North Carolina, G.S. 50-11(a) provides that “after a judgment of divorce from the bonds of matrimony, all rights arising out of the marriage shall cease and determine except as hereinafter set out, and either party may marry again without restriction arising from the dissolved marriage.” G.S. 50-11(b) provides that no judgment of divorce shall cause any child in esse or begotten of the body of the wife during coverture to be treated as a child born out of wedlock.

A former name can be resumed. 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, stating the names that person intends to resume, and authorizes the court to incorporate an order permitting the resumption of a surname in the divorce decree where the point is raised in the complaint or counterclaim. Rights in a former spouse’s estate end: G.S. 31A-1(a)(1) names a spouse from whom or by whom an absolute divorce has been obtained, and G.S. 31A-1(b) sets out what is lost, including rights of intestate succession, homestead, the right to petition for an elective share, the year’s allowance and the right to administer the other spouse’s estate.

Common questions

Is there a form to file for separation in North Carolina?

There is not. Separation is a matter of fact — the spouses living in separate residences with at least one intending it to be permanent — and the period in G.S. 50-6 runs from that date without any filing. A separation agreement under G.S. 52-10.1 is a contract between the spouses, must be in writing and acknowledged before a certifying officer who is not a party to it, and is not lodged with the court to take effect.

Does the other spouse have to be served?

Yes. The summons and complaint must be served under Rule 4 of the North Carolina Rules of Civil Procedure, and under Rule 4(c) personal or substituted personal service must be made within 60 days after issuance of the summons, though failure to serve in that time does not invalidate the summons. Where a spouse cannot be found after due diligence, service by publication under Rule 4 is available; G.S. 50-11(e) refers to it expressly in allowing such a defendant six months from the judgment to bring an equitable distribution claim.

Do both spouses have to appear in court for an absolute divorce?

Not necessarily. G.S. 50-10(d) applies Rule 56 to absolute divorce actions, so where no genuine issue of material fact remains the court may find the facts from affidavits or verified pleadings. G.S. 50-10(e) allows the clerk of superior court to enter judgment in a narrow class of default, admitted or waived cases where absolute divorce, or absolute divorce and resumption of a former name, is the only claim and the defendant is not an infant or an incompetent person. Practice varies between counties.

What happens if the divorce is granted before a property claim is filed?

Under G.S. 50-11(e) the right to equitable distribution under G.S. 50-20 is destroyed unless it was asserted before the judgment of absolute divorce. Two savings provisions follow. Subsection (e) gives a six-month window to a defendant who was served by publication under Rule 4 and did not appear, and G.S. 50-11(f) gives six months from entry of the judgment where the divorce was granted by a court that lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, with the validity of that divorce open to attack in the equitable distribution action. G.S. 50-11(c) deals with alimony and postseparation support separately, preserving them where an action was pending when the judgment was granted.

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