Going through a divorce is stressful in and of itself. Having to navigate through North Carolina's complex divorce process in order to be granted one adds, even more, stress to an already difficult situation. The good news is that you don't have to go through this alone. Whether you are the one who has decided to file or if you have been recently served divorce papers, contacting a divorce or family law attorney will make things substantially easier for you and could potentially save you lots of money in the long run.
For the purpose of this article, we will address (1) the grounds for filing a divorce in North Carolina; (2) alternative options that the state offers divorce petitioners; and (3) the benefits of hiring an attorney for advice or to assist you through this process.
Grounds for Filing a Divorce in North Carolina
When two people get married, their union is considered a contract in the eyes of the law. This contract is only due to expire when a spouse dies. The request for a dissolution of marriage, also known as an absolute divorce, signifies that both parties want this contract to end prematurely. In order to do so, a spouse must have a valid legal reason, or “grounds,” for filing a divorce for it to ultimately be granted by the court.
The line of reasoning that will be considered by a court to end a marriage is based on whether a state abides by fault laws or no-fault laws. Fault states require a spouse to prove that their husband or wife exhibited behavior that led to the breakdown of the marriage. Instances of “marital misconduct,” such as infidelity or abuse in any form, must be proven in a claim to legitimize a divorce.
No-fault states do not demand that petitioners prove marital misconduct within a marriage. The only requirement to end a marriage in these jurisdictions is proving that a union is broken and cannot possibly be salvaged. As long as this sentiment is voiced by at least one spouse, the marriage can, by law, be dissolved.
The remaining states handle divorces using an approach that conflates both of the laws, by permitting judges to consider marital conduct while simultaneously offering spouses the option of acquiring a no-fault divorce.
North Carolina is considered a no-fault state. Its no-fault divorce process is relatively straightforward. In accordance with statutory divorce laws, there are two legal grounds to obtain a no-fault a divorce in the state:
- A couple must have been physically separated for at least one year.
- At least one spouse has resided in North Carolina six months prior to filing.
Another ground for obtaining a divorce in North Carolina is filing on the basis of incurable insanity. This ground is not marital misconduct and will not be treated as such. A spouse is considered incurably insane when he or she has been institutionalized in a medical facility for a total of three years, causing him or her to be separated from the other spouse. In order to prove incurable insanity, medical professionals must testify in a trial affirming that the healthy spouse's claims are accurate.
Divorce From Bed and Board
An alternative resolution to an absolute divorce in North Carolina is a divorce from bed and board. Although the word “divorce” is used in its name, this court order is not technically a legal divorce; it is a judicially sanctioned separation. This option is granted very rarely and can only be granted in specific circumstances:
- One spouse has abandoned another.
- A spouse kicks the other spouse out of their residence.
- A spouse has committed adultery.
- A marriage contained instances of domestic violence.
- A marriage contained alcohol and/or drug addiction.
- There is proof of indignities (conduct that humiliates and degrades the other spouse), such as, abusive language and neglect.
North Carolina also offers the option of getting an annulment, rather than a divorce. When a person wishes to get their marriage annulled, they wish to legally erase proof of a marriage as if it never existed. State residents in pursuit of an annulment must meet at least one of these relatively narrow qualifications:
- Either spouse was already married to another person at the time of the marriage.
- One spouse was forced to enter a marriage.
- One spouse entered into a marriage due to the misrepresentation and lies of the other spouse.
- Either spouse was too young to enter a marriage without court or parental approval.
- The spouses are in a marriage that is legally considered incestuous.
- One spouse was diagnosed emotionally disturbed or mentally ill at the time of marriage.
- One spouse was incapacitated (under the influence of drugs or alcohol) at the time of marriage and could not properly consent to this decision.
- One spouse was physically incapable of having sexual relations at the time of marriage and during the marriage.
Do I Need an Attorney to File for Divorce?
In North Carolina, hiring an attorney to initiate the process of a divorce is not obligatory. However, state divorce laws are complex and make simple situations seem difficult and confusing. It would be in your best interest to consult with an attorney who is well-versed in state divorce law prior to filing to ensure that there aren't any other claims that you may wish to pursue.
North Carolina impedes a party who has already been granted a divorce from filing claims related to alimony and equitable distribution afterward. Even if you don't hire a divorce lawyer to represent you during this process, consulting with one for advice will help you to be able to make a well-informed decision based on your options and circumstances.
Experienced North Carolina Family Law Attorneys
Going through a divorce is stressful, and it is almost never easy. This is an emotional time for both parties involved, and it seems as if nobody ever gets out unscathed. Either party in a divorce will benefit from the legal advice that the skilled attorneys at Caulder & Valentine have to offer. We are here to help you protect your best interest and help you move on with your life. Contact us today for a consultation.