Grounds for Divorce in North Carolina

Learn more about the grounds for divorce in North Carolina.

By , Attorney

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 a divorce terminates the marital relationship, the spouses no longer owe each other marital obligations and duties, and they are free to marry someone else.

Is North Carolina a No-Fault State?

Yes, you can obtain a no-fault divorce in North Carolina. When a state allows divorcing spouses the option of filing a no-fault or fault divorce, it's up to the spouse to choose which legal path to take. If you'd like an absolute divorce in North Carolina, you must file using the court's no-fault divorce process.

The no-fault divorce process is often less expensive and time-consuming than the fault process because neither spouse is pointing fingers at the other for breaking up the marriage. As a result, couples often work through their differences faster and without multiple court hearings. Although the no-fault process isn't free, it's much less expensive than the alternative.

Some states permit fault-based divorce, which is where one spouse blames the other for the relationship's demise. A fault-based divorce can get complicated very quickly. It's not enough to tell the court your spouse committed adultery or was cruel throughout the marriage. Instead, you'll need to introduce evidence proving your allegations. Unless you're familiar with the state's rules of evidence, you'll likely need to hire an attorney to litigate your case correctly.

While most couples opt for the no-fault divorce process, some find that the fault divorce process better suits them, especially if there is property or spousal support in the mix.

Although North Carolina doesn't have a fault-based absolute divorce process, you may find that a spouse's misconduct impacts other aspects of the divorce. For example, suppose a spouse committed adultery during the marriage. In that case, the law prohibits the court from awarding the cheating spouse alimony (unless both spouses were unfaithful, and then it's up to the judge.) (N.C. Gen. Stat. § 50-16.3A.)

The judge may also consider marital fault when dividing a couple's marital property during the divorce proceedings. While it's uncommon for the judge to use the property division statutes to "punish" a guilty spouse, the judge may consider marital fault if the spouse used marital funds to carry out the misconduct. (N.C. Gen. Stat. § 50-20 (c).) For example, the judge may allow an innocent spouse to recoup any money an unfaithful spouse spent on vacations, gifts, or trips with a partner.

Marital misconduct is not generally in the list of factors the court evaluates when determining custody. The hallmark of every custody case is that the custody award promotes the child's best interests and welfare. Although immoral, adultery doesn't generally impact a parent's ability to care for a child. However, if the misconduct puts the child in an unhealthy situation or contact with a dangerous individual, the actions could indirectly affect a final custody decision.

The No-fault Divorce Process

North Carolina's no-fault divorce process is straightforward.

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 separation is because you don't want to live together as a married couple anymore.

If you and your spouse engage in isolated incidents of sexual relations during the one-year separation period, the one year 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. (N.C. Gen. Stat. § 50-6.)

The second requirement is that at least one of the spouses must live in North Carolina for a minimum of six months before filing the divorce papers. (N.C. Gen. Stat. § 50-8.)

What Is Incurable Insanity?

Incurable insanity is another no-fault ground for divorce in North Carolina. 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 may only grant a divorce on these grounds only if the illness had caused the spouses to live separate and apart for the three consecutive years before the divorce proceedings began. A spouse can prove incurable insanity by obtaining sworn statements from the medical facility superintendent and the treating physician, explaining that the sick spouse is incurably insane. (N.C. Gen. Stat. § 50-5.1.)

If your spouse suffers from "incurable insanity," you must use this process to obtain an absolute, no-fault divorce instead of 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, but it's not an absolute divorce. Instead, it's a way for couples to obtain a legal separation in the state.

Divorce from bed and board 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 treatment that endangers the other's life
  • a spouse mistreats the other spouse 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. (N.C. Gen. Stat. § 50-7.)

In a divorce from bed and board, the spouses 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 divorce judgment. After this particular kind of judgment is issued, no one can force the parties to live together anymore. However, the spouses 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 living together. In such cases, a divorce from bed and board has the practical effect of forcing the spouses to separate until they return to court and are ready to obtain an absolute divorce.

If you have questions about pursuing a divorce in North Carolina, you should contact an experienced family law attorney in your area for advice.

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