WHAT DOES DIVORCE MEAN ANYWAY?
What is it?
Absolute Divorce, or Divorce, are words commonly used to refer to the process to obtain a “divorce decree.” This piece of paper provides the final step necessary to end the marriage between you and your spouse. You must present a “divorce decree” before you can remarry.
What are the grounds for Absolute Divorce?
The two grounds for absolute divorce in North Carolina are a one-year legal separation and incurable insanity. We will examine the first, most common ground further in this article. The second occurs far less often. It requires a minimum of three years of separation and expert evidence to prove insanity of your spouse.
Either spouse may request a separation and then file for absolute divorce since North Carolina is a “no fault” divorce state. To file for absolute divorce, the couple must first meet the requirement of one year and one day of separation. Prior to a divorce action being filed, at least one of the spouses must have resided in the state for at least six months.
What does “residency” mean?
Residence in the state means a person lives in the state and has the intent to live there indefinitely.
If a person lives temporarily in another state, even for a few months, but considers North Carolina home and intends to return to North Carolina to live permanently then they are North Carolina residents.
The same would apply to a college student who moves from North Carolina for school. As long as he or she has no intent to remain in that other state then they are still North Carolina Residents. Military service members may also establish residence in a state, and we can provide further guidance as to how that may be obtained.
The spouse may move after he or she files even if the Court has yet to approve the divorce. Residency must simply be proved for the six months prior to when the complaint is filed.
What is the process to file for Absolute Divorce?
Either spouse may file for absolute divorce in the district court of the county in which one of the parties lives. The divorce complaint may not be verified and filed until the first day after the full year of separation. Once that year ends the divorce may be filed at any point. The following details must be included in the complaint:
- At least one of the parties involved has been a resident of North Carolina for at least six months prior to filing the complaint;
- The parties have lived separate and apart for at least one year and the dates of that separation are listed; and
- The name(s) and age(s) of any child(ren) of the marriage are given, or a declaration that no children were born during the marriage is made.
Complaint is filed. What’s next?
Once a complaint for divorce has been properly verified and filed by the plaintiff, the other spouse—the defendant—will be served with the summons and complaint. Several options exist to complete this.
- The first choice is to pay for a personal service:
- This can be done through the Sheriff’s office in the county where the other spouse resides; or
- A process server may be hired to serve a spouse who lives outside of the state.
- The next option is to send it by way of registered or certified mail through the United States Postal Service. This package must be addressed to the other spouse’s home and should have a return receipt or signature confirmation requirement.
- A third option utilizes another designated delivery service, such as DHL, FedEx, or UPS. Like the USPS option, this delivery must go to the other spouse’s home and requires a receipt of delivery.
- Finally, a spouse may be served by publication; but this must be a last resort. You will be required to prove that other methods were attempted first. This option becomes necessary when it is impossible to find the current address for the other spouse. This is the most expensive and most difficult option and you would be well-advised to seek the assistance of an attorney. The notice must be written in a certain format and be published once a week for three consecutive weeks.
For the first three service options, a defendant will have 30 days from the time they receive the paperwork to file an answer or respond in some way. He or she will have the option to file for a 30-day extension. In the fourth option, the defendant has 40 days to file an answer.
If the defendant chooses not to respond, the spouse who filed for divorce must wait out the 30-day or 40-day period before a hearing may be scheduled. The defendant can choose to waive the waiting period, and then either of you may schedule a court date sooner.
What happens in Court?
A divorce hearing may occur through summary judgment, where only the attorney appears and obtains the decree. Sometimes you may have to actually appear in Court. We can walk you through all the details if you must appear. Each county varies slightly in how they approach these hearings, and each Judge has his or her own rules to follow.
Typically only the plaintiff and his or her attorney attends. You will have to answer your attorney’s questions about the date of marriage, date of separation, children (if any), and that all the information in the complaint is correct.
Absolute divorce may be granted before the Court hears other claims, such as those for Alimony and Equitable Distribution. However, the claims for Alimony and Equitable Distribution must be pending in Court or the divorce will cut off the right to proceed on them.
Can I change my name?
You may request a name change at the time of divorce. If you wait until after, you may still request a name change from the clerk of court, but you must present your divorce judgment.
A woman may return to her maiden name, the last name of a previous deceased husband, or the name of a former husband if she has a child with his last name.
What do I need to know before I file for Absolute Divorce?
Keep two very important issues in mind:
- Requests for Alimony: An Alimony claim must be filed prior to and be pending at the time a divorce is granted or the claim will be barred; and
- Requests for Equitable Distribution: An Equitable Distribution claim must also be filed prior to and be pending at the time a divorce is granted. The only exception to this timeline applies to a defendant who was served by publication and did not appear. This defendant may then request Equitable Distribution within six months from the date of the divorce.
You may want to check with the other spouse’s health insurance company if you or your children come under his or her company’s health insurance policy. The divorce may terminate your insurance coverage. COBRA (Consolidated Omnibus Budget Reconciliation Act) benefits may allow you to continue health coverage after divorce. You will need to check with the plan to confirm whether that coverage is available.
What do I do now?
We recommend you find an attorney to help you with all the paperwork and details involved with the pursuit of an absolute divorce. There is no reason to add to the stress of this season of life by doing it on your own. Contact us today to schedule a consultation, or click here to schedule a consultation online!