Can You Apply For Divorce In Nc?

The divorce laws of North Carolina, also known as an 'absolute divorce', are considered no-fault laws, meaning that neither spouse needs to prove fault to get a divorce. There are two grounds for divorce in the state: separation for one year, or incurable insanity of one spouse and living separate and apart for three years. To file for divorce, one spouse must have been living in North Carolina for at least six months, and the couple must have been living in different homes for at least a year and a day, with at least one spouse intending for the separation to be permanent.

If one spouse is at fault

In North Carolina, divorce is a "no-fault" process, meaning that a spouse who files for divorce does not need to show cause or prove that one spouse was at fault. However, "fault" may still be considered when determining post-separation support and alimony (spousal support).

Divorce from Bed and Board

A divorce from bed and board is a court-ordered separation that is based on fault. It is not an absolute divorce, and the couple remains legally married. A divorce from bed and board can be ordered if the spouse requesting it can prove serious fault, such as:

• Adultery
• Abandonment of the family
• Cruel or barbarous treatment
• Maliciously forcing the other spouse to leave the home
• Excessive alcohol or drug use
• Indignities rendering the other spouse's life intolerable and burdensome

Alimony and Post-Separation Support

Even though North Carolina is a no-fault divorce state, the court may consider "marital misconduct" when deciding whether to award post-separation support or alimony, and the amount to be given. Marital misconduct includes:

• Illicit sexual behaviour
• Involuntary separation caused by a criminal act, such as imprisonment
• Abandonment
• Maliciously forcing the other spouse to leave the home
• Cruel or barbarous treatment endangering the life of the other spouse
• Indignities rendering the other spouse's life intolerable and burdensome
• Reckless spending or destruction/waste/concealment of assets
• Excessive alcohol or drug use
• Failure to provide necessary subsistence

If one spouse is in the military

Military Divorce in North Carolina

Divorce in North Carolina is a complex process, and even more so when one spouse is in the military. Here are some key things to know about military divorce in the state:

Residency Requirements

To file for divorce in North Carolina, either spouse must be a resident of the state for at least six months before filing. This requirement can be met if one spouse is stationed at a military base in the state.

Service of Divorce Papers

Serving divorce papers to a spouse who is on active duty, especially in a hostile area, can be challenging. The Servicemembers Civil Relief Act (SCRA) provides protection in such cases by not allowing a default judgment if the military spouse is absent. The SCRA also allows a deployed military member up to 90 days to respond to a divorce complaint, compared to the usual 30 days in civilian divorces.

Child Custody

Child custody agreements in military divorces must consider the potential for deployments and base reassignments. They should include provisions for how visitation will be handled during deployments and how any missed visitation time will be made up. Transportation arrangements and costs for visitation should also be specified in the agreement, especially if the parents live far apart.

Division of Assets and Retirement Benefits

North Carolina follows the principle of equitable distribution, meaning marital assets and debts are divided fairly, though not necessarily equally. The federal Uniformed Services Former Spouse Protection Act (USFSPA) governs how military retirement pay is divided in a divorce and allows former spouses to retain certain benefits, including access to military health care facilities and exchanges/commissaries, in some cases.

Military Judicial System and Penalties

Members of the military are subject to additional penalties under the Uniform Code of Military Justice. Issues such as infidelity, child abuse, domestic violence, and non-payment of child support can lead to a court-martial.

Legal Representation

Due to the unique aspects of military divorces, it is essential for spouses to seek legal representation from attorneys experienced in handling such cases. They can help navigate the complex interplay between federal and state laws and protect the rights and interests of their clients.

If one spouse is incarcerated

Divorce Laws in North Carolina: If One Spouse Is Incarcerated

In North Carolina, divorce laws apply if one spouse is incarcerated. The state's divorce laws allow for a no-fault divorce, which means that neither spouse needs to prove that the other is at fault for the marriage ending. This is also true if one spouse is incarcerated.

Grounds for Divorce

The only two grounds for divorce in North Carolina are:

• Separation for one year, with at at least one spouse intending for the separation to be permanent.
• Incurable insanity of one spouse, living separate and apart for three consecutive years, including when the petition is filed.

Residency Requirements

To file for divorce in North Carolina, one spouse must have been living in the state for at least six months immediately prior to filing.

Legal Separation

A legal separation in North Carolina requires spouses to live separately and intend to remain separated or pursue a divorce. A legal separation agreement is not required, but it can be helpful in avoiding problems that arise during a divorce hearing. This agreement can include provisions for child custody and support, property division, spousal support, and possession of the marital residence.

Divorce Process

The divorce process in North Carolina typically involves filing a complaint with the court, serving the divorce complaint to the other spouse, and then scheduling a hearing. If the divorce is uncontested, it can be obtained quickly. However, if there are issues in dispute, the case may take longer.

Alimony and Property Division

Alimony and property division are determined by the court based on factors such as the income, earning capacity, age, health, and marital misconduct of both spouses. Marital misconduct, including abandonment and imprisonment, can impact alimony payments.

Child Custody

Child custody is determined based on the best interests of the children. While an extramarital relationship may not warrant a loss of custody, it could impact the judge's decision if it is believed to affect the child's well-being.

Seeking Legal Advice

It is recommended to consult a lawyer when facing serious marital problems and considering divorce, especially if one spouse is incarcerated.

If one spouse is incompetent

In the state of North Carolina, annulment is only granted under certain limited circumstances. If one spouse is already married (i.e. bigamy) or if either party is under 16 years of age at the time of the marriage, annulment can be considered. Additionally, if either party is physically impotent at the time of the marriage, or if one of the spouses was coerced into the marriage or did not understand what they were agreeing to, then annulment may be obtained.

It is important to speak to an attorney about the specifics of your case to determine whether or not annulment is a viable option.

If one spouse is underage

In North Carolina, divorce laws require that the couple must have lived separate and apart for one year, and that one party must have resided in North Carolina for six months before filing for divorce. This means that both spouses must be living in different homes, and at least one of them must intend for the separation to be permanent.

In the case of a spouse being underage, the same laws apply. However, there are additional considerations to keep in mind. If the underage spouse is under 16 years old, an annulment can be considered. If the underage spouse is 16, then the consent of the other spouse is not necessary for a divorce. It is important to note that North Carolina does not allow common-law marriages, so the underage spouse must be solemnized as husband or wife in front of an ordained minister or authorized official for the marriage to be legally recognized.

If the underage spouse is seeking an annulment, it is important to consult with an attorney as there are specific requirements that must be met. For example, if the underage spouse was forced to marry against their will or was incapable of understanding the nature of the marriage, an annulment may be granted.

Additionally, it is important to consider the emotional and financial implications of the divorce for the underage spouse. They may need additional support during this transition, especially if they are still financially dependent on their partner. Seeking legal counsel can help ensure that their rights are protected and that they receive the assistance they need during this difficult time.

In summary, while the basic divorce laws in North Carolina apply regardless of the age of the spouses, there are unique considerations when one spouse is underage. These may include the option for annulment, the need for parental consent, and the potential emotional and financial challenges that the underage spouse may face. Consulting with a knowledgeable attorney can help guide the underage spouse through the legal process and ensure their rights are protected.

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