Ending a marriage involves navigating complex legal procedures, understanding your rights, and making decisions that affect your future for years to come. North Carolina divorce law establishes specific requirements, processes, and protections for couples dissolving their marriages, from initial separation through final divorce decree. Whether you're considering separation, preparing to file for a divorce, or already involved in divorce proceedings, understanding how North Carolina courts handle divorce, property division, spousal support, and child custody helps you protect your interests and make informed decisions during this challenging transition.
Grounds for Divorce in North Carolina
North Carolina provides limited grounds for divorce, making it different from many other states that recognize multiple fault-based reasons for ending marriages.
No-Fault Divorce Through Separation
North Carolina is primarily a no-fault divorce state, meaning you don't need to prove your spouse did anything wrong to obtain an absolute divorce. The primary ground for divorce requires that you and your spouse have lived separate and apart for at least one year and one day, with at least one spouse intending the separation to be permanent from the time it began.
Living separately and apart means residing in different residences. You cannot be legally separated while living in the same home, even if you sleep in separate bedrooms and avoid each other. At least one spouse must actually leave the marital residence and establish a separate household.
The intention for the separation to be permanent must exist at the start of the separation period. If you separate for work purposes, military deployment, or other temporary reasons without intending permanent separation, this doesn't count toward the one-year requirement. If you reconcile and resume living together as a married couple during the separation period, the one-year clock resets, and you must start a new separation period.
Incurable Insanity
The second ground for absolute divorce in North Carolina is incurable insanity, though this ground is rarely used due to its stringent requirements. To divorce on this basis, you must prove that you and your spouse have been living apart for at least three consecutive years because of your spouse's mental health condition, your spouse has been institutionalized during that time or was found insane by a judge at least three years ago, and you present testimony from at least two specialty doctors, one of whom must be a psychiatrist, confirming your spouse is currently and incurably insane.
This ground typically applies when one spouse requires permanent institutional care for severe mental illness, making it impossible for the couple to live together. The evidentiary burden and the availability of the simpler one-year separation ground make incurable insanity an uncommon basis for divorce.
Divorce From Bed and Board
Despite its name suggesting divorce, a divorce from bed and board is actually a court-ordered legal separation, not a true divorce. This fault-based action allows spouses to obtain court approval for living apart while remaining legally married. Grounds for divorce from bed and board include abandonment, being maliciously turned out of the home, cruel treatment that endangers your life, indignities that make life intolerable, excessive alcohol or drug abuse, and adultery.
Once separated due to a divorce from bed and board order, you can resolve issues like property division and post-separation support through court orders. However, you still need to wait one year after the court-ordered separation and then file for absolute divorce to legally end the marriage. Neither spouse can remarry until obtaining an absolute divorce.
Residency Requirements and Filing for Divorce
North Carolina law establishes specific residency requirements that must be met before you can file for a divorce in the state.
Six-Month Residency Requirement
Either you or your spouse must have lived in North Carolina for at least six consecutive months immediately before filing the divorce complaint. It doesn't matter where you were married or how long you were married elsewhere. As long as one spouse meets the six-month residency requirement, North Carolina courts have jurisdiction to grant your divorce.
If both spouses live in North Carolina but in different counties, the divorce can be filed in either county. If only one spouse lives in North Carolina, the divorce must be filed in the county where that spouse resides.
Where to File
You file for divorce with the clerk of the court in the county where either you or your spouse lives. The filing process begins with submitting a divorce complaint along with required filing fees, which are currently $225 in most counties. If you cannot afford the filing fee, you can apply to have it waived by demonstrating financial hardship.
The Divorce Process in North Carolina
Understanding the steps involved in obtaining a divorce helps you prepare for what lies ahead and avoid common mistakes that could delay or complicate your case.
Filing the Complaint
The spouse seeking divorce files a complaint with the clerk of court stating the facts supporting the divorce request, including how long you've been separated, which spouse has lived in North Carolina for six months, and whether there are minor children from the marriage. The complaint must be verified, meaning you swear under oath that the facts stated are true.
Serving Your Spouse
After filing, you must ensure your spouse receives proper legal notice by serving them with a copy of the summons and complaint. Service typically occurs through the sheriff's office, certified mail, or a private process server. You cannot serve the documents yourself. If you cannot locate your spouse after diligent efforts, you may be able to serve them by publication in a newspaper, though this requires court approval and following specific procedures.
Your spouse has 30 days after being served to file an answer. If they don't respond, you can proceed with an uncontested divorce. If they do respond and contest any issues, the case becomes more complex and may require court hearings.
The Divorce Hearing
You must schedule a hearing for your absolute divorce. Simple divorce hearings where no other issues are contested are typically brief. You'll testify under oath about the facts showing you're eligible for divorce, including when you separated, where you've lived, and that you intended the separation to be permanent. In most circumstances, you'll leave court with a copy of your divorce judgment the same day.
Some counties allow uncontested divorces to be processed without a court appearance if all requirements are met and proper paperwork is submitted. Check with your county clerk's office about local procedures.
Proving Separation
Your truthful testimony under oath typically suffices to prove you've been separated for one year. You can also present other witnesses who can confirm when the separation began or provide documents like a dated separation agreement, lease agreements showing separate residences, or utility bills in your name at a different address.
Legal Separation vs. Absolute Divorce
North Carolina recognizes both legal separation and absolute divorce, though these terms mean different things than they might in other states.
Separation Agreements
North Carolina law authorizes couples to enter into separation agreements, which are private contracts between spouses who are separated or planning to separate. These agreements can address property division, spousal support, child custody, child support, debt allocation, who remains in the marital home, and other issues related to living apart.
A separation agreement must be in writing, signed by both parties, and both signatures must be notarized to be valid. Once properly executed, a separation agreement is a binding contract enforceable in court. Spouses who resolve issues through separation agreements can make these decisions themselves and avoid court involvement for most divorce-related matters.
However, certain provisions in separation agreements can be modified by courts. Child custody and child support terms can be changed if a judge finds the original terms don't serve the child's best interests or circumstances have substantially changed. Property division and spousal support terms are generally binding and cannot be modified unless both parties agree, or you can prove fraud, duress, or other grounds for setting aside a contract.
Divorce From Bed and Board
As discussed earlier, divorce from bed and board is North Carolina's form of court-ordered legal separation. It requires proving fault-based grounds and results in a court decree that the couple will live separately. However, it doesn't end the marriage or allow either spouse to remarry.
Timing Issues in North Carolina Divorce Law
When you file for divorce and when your divorce becomes final can significantly affect your rights to other claims and your ability to remarry.
Critical Timing Rule for Property and Alimony Claims
If no one files for property division through equitable distribution before the absolute divorce is final, both parties forever lose the right to ask a court for property division. Similarly, if no one files for spousal support before the absolute divorce is final, both parties forever lose the right to ask a court for alimony.
This means you must file claims for equitable distribution and alimony before your divorce judgment is signed, even if those claims haven't been resolved yet. The claims just need to be pending when the divorce becomes final. Many people make the costly mistake of rushing to get divorced without preserving these important rights.
Child-Related Claims Are Not Affected
Unlike property division and alimony, child custody and child support claims are not affected by divorce timing. Parents can file for custody or support at any time while children are minors, regardless of marital status. These claims focus on children's ongoing needs rather than resolving marital issues, so they remain available even after divorce.
Equitable Distribution of Marital Property
North Carolina follows equitable distribution principles when dividing property between divorcing spouses, meaning courts divide marital property fairly, though not necessarily equally.
Classifying Property
The first step in equitable distribution is classifying all property and debts as either marital property, separate property, or divisible property. Marital property includes all real and personal property acquired by either spouse during the marriage and before the date of separation. This includes houses, vehicles, bank accounts, retirement accounts, businesses, investments, and personal property acquired during marriage.
Separate property includes assets either spouse had before the marriage, property acquired during marriage by gift or inheritance specifically to one spouse, and property excluded by a valid prenuptial agreement. Separate property belongs solely to one spouse and is not subject to division.
Divisible property is a third category covering property obtained or changes in value that occur between separation and divorce. This includes increases or decreases in marital property value, passive income from marital property, and certain other post-separation changes. Divisible property may be divided between spouses depending on circumstances.
Presumption of Equal Division
North Carolina law presumes that an equal 50/50 division of marital property is equitable and fair. However, courts can deviate from equal division based on numerous factors including each spouse's income and earning capacity, duration of the marriage, age and health of both parties, each spouse's contributions to acquiring and maintaining marital property, one spouse's contributions to the other's education or career development, tax consequences of the distribution, and any acts by either spouse to waste, neglect, or devalue marital property after separation.
Importantly, marital misconduct like adultery is not a factor in equitable distribution except in cases of financial misconduct after separation. The court focuses on fair economic division rather than punishing fault in the marriage.
Spousal Support Under North Carolina Divorce Law
North Carolina provides for two types of spousal support: temporary post-separation support and longer-term alimony.
Post-Separation Support
Post-separation support is temporary spousal support paid by a supporting spouse to a dependent spouse who needs support after separation but before divorce. This temporary support continues until an alimony hearing resolves permanent support or until support is otherwise terminated.
To receive post-separation support, you must prove you are a dependent spouse (actually dependent on the other spouse or substantially in need of support), and your spouse is the supporting spouse (able to pay support). The court can award temporary support relatively quickly to address immediate needs while waiting for full alimony proceedings.
Alimony
Alimony is longer-term spousal support that continues after divorce. A judge may award alimony if you are the dependent spouse, your spouse is the supporting spouse, and awarding alimony is equitable after considering statutory factors.
The court considers marital misconduct when determining alimony. If the dependent spouse committed adultery during the marriage, they are generally barred from receiving alimony even if otherwise entitled to support. If the supporting spouse committed adultery, they must pay alimony if the dependent spouse is entitled to it. If both spouses committed adultery, alimony is at the court's discretion.
The court also considers each spouse's earnings and earning capacity, ages and health, sources and amounts of income, length of marriage, contributions to the other's education or career, custodial parent's needs, standard of living during marriage, education levels, relative assets and debts, and tax consequences when determining alimony amounts and duration.
Child Custody and Child Support
While child custody and child support are technically separate from divorce proceedings, they're often resolved simultaneously with divorce and related matters.
Best Interests Standard for Custody
North Carolina courts determine child custody based on the child's best interests. Factors considered include each parent's ability to provide for the child's needs, the child's relationship with each parent, each parent's mental and physical health, any history of domestic violence or substance abuse, and the child's preferences if old enough to express a reasonable preference.
Courts can award sole custody to one parent or joint custody where parents share decision-making responsibilities. Physical custody addresses where the child lives, which can be primary with one parent and visitation with the other, or shared between both parents.
Child Support Guidelines
Both parents are legally responsible for supporting their minor children. North Carolina uses child support guidelines based on each parent's income and the number of children requiring support. The guidelines calculate a basic child support obligation based on combined parental income, then allocate that obligation between parents based on their respective income percentages.
Additional amounts are added for work-related childcare costs, health insurance premiums for the children, and certain extraordinary expenses. The parent with less parenting time typically pays support to the parent with more parenting time.
Resources for Those Facing Divorce
Several resources can help North Carolinians navigate divorce proceedings.
Legal Aid of North Carolina
Legal Aid of North Carolina provides free legal assistance to low-income residents facing divorce and family law matters. Contact them at 1-866-219-5262 to determine if you qualify for services.
Court Self-Help Centers
Many North Carolina counties operate self-help centers that provide divorce forms, instructions for filing, and information about local court procedures. These centers cannot provide legal advice, but can help you understand the process and complete the required paperwork.
Guide and File System
North Carolina courts offer Guide and File, a free online service helping users prepare court documents for an absolute divorce. This system walks you through the required forms and generates completed documents you can file with the court.