What is "absolute divorce" in North Carolina?
"Absolute divorce" is a legal term of art which simply means that a North Carolina judge has filed a written court order granting a divorce. Divorce permanently ends a marital relationship. Because the marital relationship is terminated, the spouses don't owe each other any more marital obligations and duties, and they are free to marry someone else.
What are "grounds" for divorce?
A marriage is a contract in the eyes of the law, and in North Carolina, marriages only end upon absolute divorce, annulment (which is a judge's order that says the marriage was never legally valid), or the death of one of the spouses.
When you divorce in North Carolina, you are ending the marriage contract before it would naturally expire—when a spouse dies. To end a contract prematurely, you need a good reason. "Grounds" for divorce are the legal reason that allows a court to file a written divorce order ending a marriage.
Some states allow judges to consider "marital misconduct" (wrongful acts by one spouse, like adultery or abuse) as grounds for divorce. These states are known as "fault" states, because they take into account the behavior of the "guilty spouse," the impact on the "injured" or "innocent" spouse, and whether the misconduct contributed to the end of the marriage.
Other states don't allow judges to consider marital misconduct at all. In these states, which are known as "no-fault" jurisdictions, the only thing that matters is whether one of the spouses believes that the marriage can't be saved. If only one spouse believes that a marriage is so broken down that nothing can save the marital relationship, then a court must grant the divorce. It's not necessary for both parties to believe that the marriage can't be saved. One spouse's opinion is enough.
Still other states take a hybrid approach by allowing judges to consider certain types of marital misconduct that are outlined in state law, but also allowing spouses to pursue no-fault divorce where it is a better fit.
Is North Carolina a no-fault state?
North Carolina is a hybrid state. Yes, you can obtain a no-fault divorce in North Carolina, but divorce is also an option if either spouse has committed marital misconduct or one spouse in "incurably insane" (see below).
How can I get a no-fault divorce in North Carolina?
North Carolina's no-fault divorce process is very simple.
First, you and your spouse will need to live "separate and apart" for one year. This means that you must be physically separated and not living together for one full, uninterrupted year. You must also communicate to your spouse that the reason for the separation is because you don't want to live together as a married couple anymore. If, during the one-year separation period, you and your spouse engage in isolated incidents of sexual relations, the one-year period won't be interrupted. But, if you resume normal marital activities and begin to live as a couple, it's possible that this will bring the one-year period to an end, and you'll have to start over.
The second requirement is that at least one of the spouses must live in North Carolina for the last six months before the divorce papers are filed.
What is "incurable insanity"?
Incurable insanity is another ground for divorce in North Carolina. It is not based on marital misconduct. It occurs when a spouse suffers from some sort of mental illness or impairment that results in confinement in a medical facility. "Confinement" doesn't have to be in a secure or locked facility; it just means that medical care occurs outside the marital home and prevents the spouses from living together.
A judge can grant a divorce on these grounds only if the illness has caused the spouses to live separate and apart for the three consecutive years before the divorce proceedings began. "Incurable insanity" can be proven when the spouse who is healthy and well obtains sworn statements from the superintendent of the medical facility and the treating physician which explain that the sick spouse is incurably insane.
If your spouse suffers from "incurable insanity," you may not obtain an absolute, no-fault divorce based on the one-year separation period.
What is a "divorce from bed and board?"
A "divorce from bed and board" is North Carolina's unique variation on fault-based divorce. A divorce from bed and board is not an absolute divorce. It is available if one or more of the following situations apply:
- a spouse abandons the family
- a spouse "maliciously" (with wrongful intent) forces the other spouse to leave
- a spouse commits "cruel or barbarous treatment" that endangers the life of the other
- a spouse treats the other spouse so badly and causes such indignities that the other spouse's life becomes intolerable
- a spouse becomes an excessive user of alcohol or drugs to the point that the other spouse's life becomes burdensome, or
- a spouse commits adultery.
In a divorce from bed and board situation, the parties go to court, and the injured spouse proves to the judge that the guilty spouse committed one of the above types of marital misconduct. Injured spouses must also prove to the judge that they didn’t provoke the guilty spouse into committing misconduct.
The judge then issues a judgment for divorce. After this special kind of judgment is issued, no one can force the parties to live together anymore. However, the spouses still remain in the marital relationship, and they can't marry someone else. The court order will decide some, but not all, of the marital issues.
A divorce from bed and board is a limited, or partial, kind of divorce. It is most common when one of the spouses is afraid of being accused of abandonment and insists on continuing to live together. In such cases, a divorce from bed and board has the practical effect of forcing the spouses to separate until they come back to court and are ready to obtain an absolute divorce.
No-fault divorce based on the one-year separation period is not an option to finalize a divorce from bed and board by ending the separation and making it absolute. This is because the court has already found misconduct.
If you have questions about pursuing a divorce in North Carolina, you should contact an experienced family law attorney in your area for advice.