Commonly, the parties will have resolved all or most of their substantive divorce-related issues prior to petitioning the court for an absolute divorce; however, only the court can grant an absolute divorce.
It is recommended that the parties enter into a separation agreement and property settlement or consent order prior to requesting an absolute divorce. There is a required one-year and one day separation period before an absolute divorce will be granted. It is also advisable for parties to resolve matters of equitable distribution of assets and spousal support prior to the petition for absolute divorce. If each party is unable to resolve these issues, claims must be filed in court prior to entry of absolute divorce or claims for the distribution of property will be waived.
Absolute divorce may be granted in North Carolina on one of two grounds: a one-year and one day’s separation or incurable insanity. Divorce on the basis of insanity is now little used. Obtaining a divorce based on incurable insanity requires a minimum three-year separation, and also requires that evidence be given by specified experts as to the spouse’s insanity. Petitioning for absolute divorce after a one-year and one day separation is far more common.
If spouses have been living separately from one another (in separate residences, not just separate bedrooms) for one year and a day, either spouse may apply to the court for a judgment of absolute divorce. A judgment of absolute divorce is a document signed by a judge that severs the bonds of matrimony, resulting in the parties no longer being husband and wife.
The “no-fault” divorce statute in North Carolina provides that “marriages may be dissolved and the parties thereto divorced from the bonds of matrimony 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.”
As long as you have been a resident of the state of North Carolina for at least 6 months on the day you file your divorce complaint, it does not matter if you remain in this state until the divorce hearing. You might want to keep this fact in mind if you are planning to move soon to another state because residency requirements for divorce vary from state to state.
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Every divorce is different and requires a custom strategy. Call Jamie today at 919-833-7454.
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