North Carolina G.S. § 50-5.1 allows for a “no-fault” procedure for divorce in which any spouse can obtain an absolute divorce based on one year’s separation. In fact, the only other way to get a divorce in North Carolina is under G.S. § 50-6 and deals with “incurable insanity.” An absolute divorce is defined as “a total divorce of husband and wife, dissolving the marriage tie and releasing the parties wholly from their matrimonial obligations.” There are three requirements for a “no-fault” divorce; residency, separation, and intent. If you are going through a divorce, wish to do so, or have any family law questions, call Raleigh family law attorney Karl S. Gwaltney at (919) 960-1545.
The residency requirement can be met by showing that at least one of the parties has lived in North Carolina for a minimum of 6 months immediately preceding the filing of the divorce action. For an absolute divorce, residency has been interpreted to mean domicile, requiring both physical presence in North Carolina along with intent to stay indefinitely.
A husband and wife are considered separated for purposes of the statute when they live separately and apart for an uninterrupted period of at least one year. Additionally, the husband and wife must have discontinued sexual relations for a one year period prior to the filing of the action. However, isolated acts of sexual relations may not restart the full one year period. A husband and wife cannot live together and be considered separated under the statute, even in the absence of sexual relations.
The last condition, intent, requires at least one spouse to intend for the physical separation to occur for the purpose of ending their marriage. Consent of both parties is not required to meet this requirement.
There are some limited defenses to claims for absolute divorce. Occasionally it may be necessary to delay an absolute divorce proceeding if the husband and wife own property as tenants by the entirety if one of the spouses has a judgment against them. Also, if a spouse has health insurance provided from the other spouse’s employer and will be unable to afford insurance on their own, it may be important to delay the judgment. The four most likely areas for potential defenses are:
- 12(b) defenses;
- Denying separation;
- Denying intent; or
- Denying the statutory one year period is completed.
A very important consideration when obtaining a judgment for absolute divorce is realizing the effect that a divorce will have on post-separation support or alimony, and on equitable distribution. When a person has a claim for post-separation support or a claim for alimony, that right will be terminated unless a claim was initiated prior to the divorce judgment. Spouses must also assert their right to the equitable distribution of marital property before the judgment or the claim will be lost forever, with one limited exception dealing with service by publication.
If you are going through a divorce or separation and have questions about its effect on alimony, post-separation support, or equitable distribution, contact Karl S. Gwaltney, a Wake County Family Lawyer with Maginnis law, PLLC. Going through a divorce or separation is a very difficult process and we are here to help. We regularly represent clients throughout the Triangle, including Raleigh, Durham, Chapel Hill, Cary, Apex, Knightdale, Morrisville, and Garner. Our firm offers a variety of billing arrangements such as hourly, retainer, and flat rate. To speak with Family Law Attorney Karl S. Gwaltney, call 919.960.1545, or send a confidential email inquiry using our contact page.