North Carolina is considered a no-fault divorce state, meaning you don't need to prove that your spouse engaged in marital misconduct to file for divorce. This fundamental characteristic distinguishes North Carolina from traditional fault-based divorce jurisdictions and simplifies the divorce process for many couples.
In a no-fault state, the courts recognize that marriages can fail for various reasons without requiring one party to prove the other did something wrong. You can obtain an absolute divorce, the legal termination of your marriage, based simply on the breakdown of the marital relationship, as demonstrated by living separate and apart for the required period.
However, North Carolina is actually a hybrid state. While you can pursue a no-fault divorce, fault-based grounds still exist and can impact other aspects of your case, including spousal support and property division. This dual system gives couples flexibility in how they approach divorce while still recognizing that marital misconduct sometimes plays a legitimate role in dissolution proceedings.
Types of Divorce in North Carolina
North Carolina recognizes two distinct types of divorce, each serving different purposes and requiring different legal grounds. Understanding these differences helps you determine which option suits your circumstances.
Absolute Divorce
Absolute divorce represents what most people think of as "divorce", the complete legal termination of a marriage. When a judge grants an absolute divorce, both parties are free to remarry, and all marital obligations and duties permanently end.
An absolute divorce is accompanied by additional court orders or agreements addressing the division of marital property, child custody arrangements, child support obligations, and alimony payments. However, obtaining the divorce itself doesn't require resolving these issues first, though failing to address them before the divorce becomes final can permanently forfeit certain rights.
This is the most common and well-known type of divorce in North Carolina, and it's what most people seek when they decide to end their marriage.
Divorce from Bed and Board
Despite its name suggesting a divorce, a divorce from bed and board is not actually a divorce in the traditional sense. Instead, it's a court-ordered legal separation that allows spouses to live apart while remaining legally married.
Under a divorce from bed and board, couples no longer live together and may resolve issues like property division and spousal support, but they cannot remarry until they obtain an absolute divorce. This type of separation can be useful in specific situations, such as when one spouse needs legal permission to leave the marital home without being accused of abandonment, or when religious or personal beliefs make divorce unacceptable but living together has become untenable.
Divorce from bed and board is fault-based, requiring proof of specific marital misconduct. While less common than absolute divorce, it serves important purposes for certain couples facing particular circumstances.
Grounds for Absolute Divorce in North Carolina
North Carolina law provides only two legal grounds for obtaining an absolute divorce. These grounds are straightforward but must be met precisely to qualify for divorce.
One-Year Separation
The most common ground for absolute divorce in North Carolina is living separate and apart for at least one continuous year. This no-fault ground allows couples to divorce based simply on the breakdown of their marriage, without proving wrongdoing by either spouse.
To meet this requirement, you must satisfy several conditions:
Living in separate residences: You and your spouse must physically live in different homes. Merely sleeping in separate bedrooms within the same house doesn't constitute legal separation in North Carolina. The separation must involve maintaining separate households.
Continuous separation: The one-year period must be continuous and uninterrupted. If you reconcile and resume living together as a married couple, the separation clock resets, and you must begin a new one-year period.
Intent to remain separated: At least one spouse must have intended for the separation to be permanent from the time it began. This intent distinguishes legal separation from temporary separations for work, military deployment, or other reasons that don't signal the end of the marriage.
Residency requirement: Either you or your spouse must have been a resident of North Carolina for at least six months before filing for divorce.
You don't need a formal separation agreement or court order to begin your separation period. The separation begins when you start living in different homes with at least one spouse intending the separation to be permanent. However, having a dated separation agreement can help prove when your separation began.
Incurable Insanity
The second ground for absolute divorce in North Carolina involves incurable insanity, though this ground is rarely used today due to its complexity and the availability of the one-year separation option.
To obtain a divorce based on incurable insanity, you must prove:
Three years of separation
You and your spouse must have been living separate and apart for at least three consecutive years because of your spouse's mental illness or incurable insanity.
Institutionalization or prior court finding
Your spouse must have been institutionalized during this time, or a judge must have found them "insane" at least three years before you file for divorce.
Expert medical testimony
You must present testimony from at least two doctors, one of whom must be a psychiatrist, confirming that your spouse is currently and incurably insane.
This ground typically applies when one spouse requires full-time medical care outside the home due to severe mental illness, making it impossible for the couple to live together. The high evidentiary burden and the availability of simpler divorce grounds make this option uncommon in modern practice.
Grounds for Divorce from Bed and Board
Unlike absolute divorce, obtaining a divorce from bed and board requires proving fault-based grounds. North Carolina law recognizes six specific grounds for this type of court-ordered separation.
Abandonment or Turning Out
Abandonment occurs when one spouse leaves the marital home without the consent of the other spouse, without justification, and with the intention not to return. This ground also applies when one spouse maliciously forces or "turns out" the other spouse from the home.
To prove abandonment, you must show that your spouse left voluntarily, without your agreement, and with no intention of resuming the marital relationship. Temporary absences for work, military service, or other legitimate reasons don't constitute abandonment.
The "turning out" aspect applies when one spouse makes life so intolerable through mistreatment or neglect that the other spouse is effectively forced to leave. In these cases, the spouse who leaves isn't considered to have abandoned the marriage, rather, they were constructively forced out.
Cruel or Barbarous Treatment
This ground applies when one spouse's conduct endangers the life, safety, or health of the other spouse. While physical violence is the most obvious example, cruel or barbarous treatment can also include severe emotional or psychological abuse that creates genuine danger.
The conduct must be serious enough to make continued cohabitation unsafe. Isolated incidents typically don't meet this standard unless they're particularly severe. Instead, courts usually require a pattern of dangerous behavior or a single incident of extreme violence.
Evidence for this ground might include medical records documenting injuries, police reports, protective orders, photographs of injuries, witness testimony, and documentation of threats.
Indignities
Indignities represent a broader category of fault-based grounds, sometimes called the "catch-all" ground for divorce from bed and board. This ground covers behavior that, while perhaps not physically dangerous, makes the spouse's life intolerable or burdensome.
Examples of indignities include:
- Persistent verbal abuse, ridicule, or humiliation
- Public embarrassment or degradation
- False accusations of serious wrongdoing, including adultery
- Constant criticism and belittlement
- Behavior that destroys the spouse's self-respect or dignity
The conduct must be more than occasional disagreements or the normal friction that occurs in any marriage. Instead, courts look for patterns of behavior that demonstrate a fundamental disrespect for the spouse and make continued marriage unbearable.
Excessive Use of Alcohol or Drugs
When one spouse's alcohol or drug use becomes so excessive that it makes living together unsafe or intolerable, the other spouse may seek a divorce from bed and board on this ground.
The substance abuse must be serious enough to fundamentally affect the marriage and the household environment. Occasional social drinking or even periodic overindulgence typically doesn't meet this standard. Instead, the abuse must be habitual and severe enough to endanger the other spouse's wellbeing or make cohabitation genuinely intolerable.
Evidence might include treatment records, arrest records for DUI or drug possession, testimony from family members or neighbors, financial records showing excessive spending on alcohol or drugs, and documentation of incidents related to substance abuse.
Adultery
Adultery occurs when a married person engages in sexual relations with someone other than their spouse. While adultery is not grounds for absolute divorce in North Carolina, it can serve as grounds for divorce from bed and board.
To prove adultery, you must show that your spouse had both the opportunity and inclination to commit adultery. Direct evidence of sexual relations is rarely available, so courts accept circumstantial evidence such as:
- Hotel receipts or credit card statements
- Photographs or videos
- Text messages, emails, or social media communications
- Witness testimony about suspicious behavior
- Private investigator reports
- Admissions by the spouse or the third party
Importantly, adultery has significant implications beyond serving as grounds for divorce from bed and board. It can affect alimony awards, with a dependent spouse who committed adultery potentially barred from receiving spousal support. North Carolina also allows a spouse to file a civil lawsuit against their spouse's lover for alienation of affection or criminal conversation, seeking damages for the harm caused to the marriage.
How Fault Affects North Carolina Divorce Proceedings
Even when pursuing a no-fault absolute divorce, marital misconduct can significantly impact various aspects of the divorce settlement. Understanding these potential effects helps you prepare for negotiations and court proceedings.
Impact on Spousal Support
Marital misconduct plays perhaps its most significant role in alimony determinations. North Carolina law specifically addresses how fault affects spousal support:
Adultery by the dependent spouse
If the spouse seeking alimony committed adultery during the marriage, they are generally barred from receiving spousal support unless the supporting spouse also committed adultery or the supporting spouse has condoned, forgiven, or facilitated the adultery.
Adultery by the supporting spouse
If the supporting spouse committed adultery and the dependent spouse did not, the court must award alimony to the dependent spouse if they're entitled to it based on other factors.
Other marital misconduct
The court may consider other fault-based grounds, such as abandonment, cruel treatment, or substance abuse, when determining whether to award alimony, how much to award, and for how long.
Impact on Property Division
While North Carolina follows equitable distribution principles that don't automatically consider fault, marital misconduct can influence property division in specific circumstances:
Marital waste
If one spouse wasted marital assets through gambling, excessive spending on an affair, or other irresponsible behavior, the court may consider this waste when dividing property.
Economic misconduct
If a spouse engaged in financial misconduct such as hiding assets, dissipating marital funds, or making fraudulent transfers, courts may award a larger share of remaining assets to the innocent spouse.
However, in most cases involving typical marital misconduct like adultery or abandonment without financial waste, fault doesn't significantly affect how courts divide marital property. The focus remains on achieving equitable distribution based on economic factors rather than punishing marital misconduct.
Impact on Child Custody
Marital misconduct between spouses generally doesn't affect child custody decisions unless the misconduct directly impacts the children or demonstrates unfitness as a parent. North Carolina courts determine custody based on the best interests of the child, not on which parent was at fault for the marriage's failure.
However, certain types of fault-based behavior can influence custody:
- Substance abuse that affects parenting ability or creates unsafe conditions
- Domestic violence or cruel treatment that traumatizes children
- Criminal behavior that demonstrates poor judgment or creates danger
- Adultery that involves exposing children to inappropriate situations
Courts focus on which parent can provide a stable, safe, and nurturing environment rather than which parent was at fault for the divorce.
The Role of Separation Agreements
Separation agreements offer an alternative to contested fault-based proceedings, allowing couples to resolve divorce-related issues through negotiation rather than litigation.
A separation agreement is a private contract between spouses that addresses issues such as:
- Property division and debt allocation
- Spousal support amounts and duration
- Child custody arrangements
- Child support obligations
- Responsibility for household bills during separation
- Use of the marital home
- Health insurance coverage
- Tax considerations
These agreements must be in writing, signed by both parties, and notarized to be valid. While judges don't have to approve separation agreements (unlike some other states), they can incorporate agreement terms into final divorce orders, making them enforceable.
Separation agreements allow couples to avoid the time, expense, and emotional toll of fault-based litigation while maintaining control over the outcome of their divorce. Even when fault exists, many couples find that negotiated settlements better serve their interests than contested proceedings.
Important Timing Considerations
The timing of when you file for various claims in your divorce can significantly affect your rights and options.
Filing Before Absolute Divorce
Certain claims must be filed before your absolute divorce becomes final, or you permanently lose the right to pursue them:
Equitable distribution
Claims for dividing marital property must be filed before the absolute divorce is final. If you don't file for equitable distribution before the divorce judgment, you lose the right to ask a court to divide marital assets and debts. You'll keep only assets titled in your name or in your possession, and jointly titled property remains jointly owned even after divorce.
Alimony
Claims for spousal support must be pending when the absolute divorce is granted. If you don't file for alimony before the divorce becomes final, you permanently lose the right to request it later.
These forfeiture rules make it critical to consult with a divorce attorney before filing for divorce to ensure you protect your rights to property division and spousal support.
Child-Related Claims
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 the child is a minor, regardless of whether they've divorced. These claims focus on the child's ongoing needs rather than resolving marital issues, so they remain available even after divorce.
Requirements for Filing for Divorce in North Carolina
Beyond meeting the grounds for divorce, you must satisfy procedural requirements to file successfully.
Residency Requirements
At least one spouse must have been a resident of North Carolina for at least six months immediately before filing for divorce. It doesn't matter where you were married, you can divorce in North Carolina even if you married in another state or country, as long as you meet the residency requirement.
Filing Process
To file for absolute divorce in North Carolina:
- Prepare the complaint: Draft a divorce complaint stating the facts of your case and your request for divorce. If you also want property division or spousal support, you must include those claims in your complaint or answer.
- File with the court: File your complaint with the clerk of court in the county where either you or your spouse resides.
- Serve your spouse: Ensure your spouse receives proper legal notice by having them served with a copy of the summons and complaint. This typically involves certified mail, sheriff's service, or private process service.
- Wait for response: Your spouse has 30 days to file an answer if they choose to respond.
- Attend the hearing: Schedule and attend a divorce hearing where you'll testify under oath about the facts showing you're eligible for divorce.
- Receive judgment: If the judge finds you've met all requirements, they'll sign a divorce judgment, legally ending your marriage.
Proof of Separation
To prove you've been separated for one year, your truthful testimony under oath typically suffices. However, additional evidence can strengthen your case:
- A dated separation agreement
- Lease agreements or utility bills showing separate residences
- Testimony from witnesses who can confirm when you separated
- Documentation of the date you established separate households
Considering Alternatives to Divorce
Before proceeding with divorce, some couples benefit from exploring alternatives or intermediate steps.
Counseling and Mediation
Marriage counseling can help couples address communication breakdowns, resolve conflicts, and determine whether reconciliation is possible. Even when divorce seems inevitable, counseling can help couples separate more amicably and develop effective co-parenting strategies.
Mediation helps couples negotiate separation agreements and resolve disputes outside of court, potentially saving time, money, and emotional stress.
Legal Separation vs. Divorce
For couples who have religious, financial, or personal reasons to remain legally married, divorce from bed and board offers an alternative to absolute divorce. This allows legal and physical separation while maintaining the marital status.
Some couples also choose to separate and resolve all related issues through a separation agreement without immediately filing for divorce, giving themselves time to be certain about their decision before taking the final legal step.
Understanding the causes and grounds for divorce in North Carolina empowers you to make informed decisions about your marriage and your future. Whether you're considering separation, contemplating divorce, or simply want to understand your legal options, knowing how North Carolina law approaches divorce provides essential context for this significant life transition.
The state's hybrid approach, allowing no-fault divorce while still recognizing fault-based grounds in certain contexts, gives couples flexibility while acknowledging that marital misconduct sometimes legitimately affects divorce outcomes. By understanding the different types of divorce available, the specific grounds you must prove, and how fault can impact various aspects of your case, you can approach the divorce process with greater clarity and confidence. Working with an experienced family law attorney ensures you protect your rights, meet all legal requirements, and achieve the best possible outcome as you navigate this challenging chapter and begin building your new future.