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Absolute Divorce in North Carolina

Absolute Divorce – The Details

In North Carolina, an absolute divorce may be granted on one of two grounds: one year’s separation pursuant and incurable insanity. Obtaining a divorce based on incurable insanity requires a minimum 3-year separation and also requires that evidence be given by specified experts as to the spouse’s insanity. The insanity basis for divorce is now little used.

No-Fault Divorce in North Carolina

The “no fault” divorce statute in North Carolina provides that “marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.”

Remember that you can get an absolute divorce whether or not you and your spouse have resolved any of the other issues arising from your separation, such as custody, spousal and child support, or distribution of property.

The requirements for obtaining an NC absolute divorce on the grounds of one year’s separation are as follows:

Either the plaintiff or the defendant must have resided in North Carolina for at least six months immediately preceding the institution of the divorce action. The six-month residency requirement is jurisdictional. In the event the requirement is not met, the court would not have jurisdiction to try the action and any decree rendered would be void. 

Residence is interpreted in North Carolina to mean a domicile: you must be both in residence (physical presence in the state) and you must have the intent to make a home here or to live here permanently or indefinitely. This state will be your residence if, when absent, you intended to return here and, despite a such a temporary absence, had no present purpose to leave the state permanently. So North Carolina is your residence even if you winter in Florida every year for three months, as long as you always return to your home here afterward.

Domicile within the state after commencement of the divorce action cannot be included as part of the period of residence required by the statute. The statute specifically provides that the plaintiff shall set forth in his or her complaint “that the complainant or defendant has been a resident of the State of North Carolina for at least six months next preceding the filing of the complaint.” On the other hand, the removal of either plaintiff or the defendant from the state after the filing of the complaint, but before the trial, does not deprive the court of jurisdiction.

As long as you have been a North Carolina resident for at least 6 months on the day you file your divorce complaint, it does not matter if you remain in this state until the divorce hearing. You might want to keep this fact in mind if you are planning to move soon to another state, because the residency requirement for divorce may be longer than another six months and that state may have a longer waiting period, such as three years, for no-fault divorces based on a period of separation.

The statute also provides that “where both parties are residents of the State of North Carolina, and where the plaintiff removes from the State and ceases to be a resident, the action may be removed upon motion of the defendant, for trial or for any motion in the cause, either before or after judgment, to the county in which the defendant resides.”

ESTABLISHING RESIDENCY IN NORTH CAROLINA

Aliens, out of state students and military personnel are all capable of establishing adequate residency in North Carolina to meet the jurisdictional requirement for a NC absolute divorce. One need not be a citizen of the United States in order to establish residency or domicile within North Carolina for the purpose of divorce actions.

Further, an adult student, who has become independent of parental control and support, may acquire a domicile at the place where his or her university or college is situated if the student regards that place as home, or intends to stay there indefinitely, and has no intention of going back to the place of the former home.

MILITARY SERVICE MEMBERS

A servicemember stationed on a military reservation in the state is capable of establishing his domicile in North Carolina by virtue of section 50-18 of the North Carolina General Statutes. This statute removes the barriers which might otherwise prevent a serviceman so situated from establishing a legal residence in this state where the serviceman actually has the present intention of changing his domicile to this state.

However, the servicemember must establish both physical presence and intent. In one case, the North Carolina Court held that the domicile of a soldier or sailor in the military or naval service of his country generally remains unchanged, domicile being neither gained nor lost by being temporarily stationed in the line of duty at a particular place, even for a period of years. A new domicile may, however, be acquired if both the fact and the intent concur.

LIVING “SEPARATE AND APART”

The requirement that the parties live “separate and apart” for one year prior to the institution of the action is also jurisdictional. You do not have to prove, however, that the separation occurred on the specific date alleged in the complaint but only that you and your spouse have lived separate and apart for a period of at least one year prior to the institution of the suit.

 

Dana Wilson
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