Absolute Divorce in North Carolina

What are the requirements for a valid marriage in North Carolina?

Technically, a marriage is a legal contract between two willing people, and like any contract, there are certain minimum requirements that have to be met before a court will agree that it’s valid.

In North Carolina, a marriage is legally valid if four factors exist at the time the spouses married. First, the parties must be capable of marriage (meaning, they have the ability to get married because they are old enough to marry and they are able to understand the proceedings). Second, they must consent (agree) to marry each other. Third, they must give that consent freely, seriously, and in the presence of an official who has the power to marry them. Last, the official must declare that the couple is legally married, based on their consent. North Carolina law does not require that a marriage be consummated by sexual intercourse.

Other North Carolina marriage laws require that the wedding ceremony must be witnessed by a minimum of two witnesses. However, North Carolina’s appellate courts have not yet decided whether a marriage can be annulled if there weren’t two witnesses to a ceremony.

Can I annul my marriage in North Carolina?

Possibly, but it’s unlikely, because it’s very difficult to provide enough proof and the law is limited. A marriage must meet all of the following six criteria, and if it does not, it can be annulled and the judge will state that it’s either “void” (meaning, the marriage was never valid) or “voidable” (meaning, it wasn’t always void but it could be declared void now, or the parties could choose to continue the marriage if they so desired). A marriage may be annulled if any of the following are not met:

  • Both spouses must have been of “sound mind” at the time of the marriage. This means that both spouses must have been capable of understanding the marriage at the time they consented to and celebrated it. If not, and if a spouse was mentally incompetent at the time of the marriage, then the marriage is “voidable.”
  • Both spouses must meet the minimum age requirements of North Carolina. Anyone who is 18 or older can marry. Emancipated minors may also marry. People who are older than 16 and under 18 may marry if a parent signs a written consent in the presence of a notary public and files the consent with the register of deeds. No one under the age of 14 may marry in North Carolina, with one exception: if an unmarried, pregnant female who’s older than 14 and under 16 wishes to marry the baby’s father, then a North Carolina district court judge can issue an order allowing the couple to marry.
  • “Incestuous and improper” relationships cannot result in marriage. North Carolina law allows first cousins to marry each other, but forbids double first cousins or persons who are closer than first cousins (like siblings) to marry.
  • Both spouses must be single at the time of the marriage. If one or both were still legally married to someone else, then they can’t be married in North Carolina. These marriages are void and carry harsh consequences. For example, someone who knowingly enters into a bigamous marriage will lose all rights to their spouse’s property and estate once a judge declares the marriage to be void.
  • Currently, North Carolina specifically limits marriage to a man and a woman, so same-sex marriages are void.
  • The marriage must be performed by a minister, officer, or other person authorized to solemnize a marriage in North Carolina. There must be a ceremony held in the presence of at least two witnesses, and the register of deeds must, upon the request of the couple, issue a marriage license which is delivered to the presiding official.
  • Neither party can intentionally misrepresent or conceal a material (relevant) fact because that’s fraud. For example, if a spouse doesn’t reveal another current marriage or a spouse pretends to want to be married but really only entered into the marriage for immigration purposes, then those facts would allow the court to annul the marriage. There are many other examples of this under North Carolina’s law. For example, concealing sexual orientation or the intention not to have children can also result in annulment.
  • Marriage cannot be obtained by duress (coercion), because consent to marriage must be free and voluntary. If a spouse was subjected to overpowering force, restraint, or threats in order to secure his or her consent to the marriage, then a judge can annul the marriage.

In North Carolina, if there has been a marriage ceremony and the couple is known in the community as having a marital relationship, there is a presumption (a strong legal assumption that the judge must use) that the marriage is valid. Therefore, to overcome the presumption and obtain an annulment, a spouse must provide overwhelming proof that one of the above six grounds for annulment existed at the time of the marriage ceremony. This can be difficult to do.

How is an annulment different from a divorce?

An annulment is a judicial declaration that the marriage was void from the very beginning and was never legally valid. If you get an annulment, the court is saying, “your marriage never happened.” A divorce, on the other hand, acknowledges the existence of a valid marriage but simply terminates it. If you are divorced, the judge is saying, “your marriage is over.”

I don’t want an annulment. I want to divorce and get it over with. How does the process work in North Carolina?

North Carolina judges grant what is known as an “absolute divorce.” This means that when the parties are divorced, the marriage bond is severed and neither spouse has any marital obligation to the other. Each of the spouses becomes a single person again and is free to remarry.

States that have “fault” divorce laws allow “innocent” spouses to obtain a divorce on the basis of emotional, physical, or financial injuries caused by the “guilty” spouse (the one who has committed some kind of marital misconduct). Obtaining a divorce on the basis of fault can be time-consuming and difficult, so North Carolina abolished all its fault laws in 1983 and replaced them with the following two laws.

The North Carolina no-fault divorce statute allows the parties to divorce if they meet three criteria. First, they must live “separate and apart” (meaning, they are not living as spouses and do not share a residence) for one uninterrupted year. Second, the reason they are living apart is that one or both want to stop living and acting as a married couple. Third, at least one of the spouses has lived in North Carolina for the last six months. That is all that the statute requires. This is a simple threshold to meet, because all it requires is the passage of time.

The court may also grant an absolute divorce on grounds of one spouse’s “incurable insanity.” This is the rarer of the two routes to an absolute divorce. It requires, among other things, that the spouses currently live separate and apart and that they have lived separate and apart for the last three years because the mentally ill spouse was confined for purposes of medical treatment. If you think this law might apply to you, it would be prudent to consult with an experienced family law attorney, because the law is complex.

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