NC Divorce Laws

The following are some of the most commonly asked questions about NC divorce laws.

What are the grounds for divorce in North Carolina?

To file for divorce in North Carolina one of the parties must have lived in the State for a minimum of six months prior to filing. Divorce can be filed in either County in which the parties reside. (North Carolina Statutes Chapter 50-6)

Grounds For Divorce

There are only two grounds (reasons) for which a judge will grant an absolute divorce in North Carolina.

Separation For One Year

After a married couple has been residing separately for at least a year, and either one of the spouses has continued to reside in North Carolina for the prior six months, then either spouse is entitled to an absolute divorce. The parties must actually be separated and living apart in separate residences.

Incurable Insanity

Another ground for divorce in North Carolina is incurable insanity. This is not related to any type of marital misconduct, but is dependent upon one spouse developing a mental illness that results in medical care outside of the home that prevents the spouses from living together. An absolute divorce will only be granted based on incurable insanity if the illness has caused the spouses to live apart for three consecutive years before the divorce proceedings began.

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Does North Carolina grant divorce based on fault?

North Carolina is a no–fault divorce state. There are situations when fault is considered. Divorce based on fault is based on that conduct or behavior of one of the spouses. While a no-fault divorce requires separation for one year and a day, for the court to consider fault, the spouse must have committed one of the following facts:

  • a spouse has abandoned the other
  • a spouse “maliciously” (with wrongful intent) forces the other spouse to leave
  • a spouse commits “cruel or barbarous treatment” that endangers the life of the other
  • a spouse treats the other spouse so badly and causes such indignities that the other spouse’s life becomes intolerable
  • a spouse becomes an excessive user of alcohol or drugs to the point that the other spouse’s life becomes burdensome, or
  • a spouse has committed adultery.

In order to obtain a divorce from bed and board, the plaintiff must prove to a judge that the other spouse committed one of the above types of marital misconduct. This is different from an absolute divorce. In this situation a judge will issue a judgment of divorce which is more like a court appointed separation. The parties are still legally married, and cannot marry someone else until they obtain an absolute divorce which will officially end the marriage.

(North Carolina Statutes – Chapter 50 – Sections 50-5.1 and 50-6 )

Source: SeiferFlatow, PLLC

When can I file for divorce in NC?

You must await until you and your spouse have been living separately for a minimum of one year before you can file for an Absolute Divorce. In addition, either you or your spouse must have lived in the state of North Carolina for six months before filing the action.

How do I file for divorce in Norh Carolina?

A completed summons and verified complaint must be filed with the Clerk of Court with the required fee. The complaint states what you’re asking for and it must declare the appropriate grounds upon which you are seeking a divorce.

The complaint will also state whether or not there were children born in the marriage and if so, their names will need to be listed. The summons is a notice to the other party that the divorce action has been filed against them. They are required to file a response (answer). (More on how to file for a divorce in NC.)

Will I be able to change my name at the same time I get a divorce?

Yes. You will be a to change your last name at the time of divorce. Any woman who is granted a divorce may apply to the clerk of court of the county in which she resides to change her name to any of the following:

1. Maiden name
2. The surname of a prior deceased husband,
3. The surname of a prior living husband if there are children who have that husband’s surname.
(N.C.G.S. § 50-12)

The fee for name changes $10 and is assessed against the person who is requesting the name change.

Can I get an annulment in North Carolina?

There are a few circumstances upon which a party can obtain an annulment in North Carolina. An annulment is a process that declares that a marriage never truly existed. There are limited situations in which North Carolina will grant an annulment. Although many people think that obtaining an annulment is easier and quicker than getting a divorce but that is not always the truth.

In North Carolina a marriage must be shown to be invalid for an annulment to be granted. North Carolina courts have recognized the following as grounds for an annulment.

Bigamy: Bigamy is the act of going for a marriage ceremony while already married to another person.

Incest: Husband and wife are closer than first cousins.

Impotency: Either spouse was physically impotent at the time of the marriage. This must be supported by a diagnosis from a physician.

Incompetence or insanity

Incapacity To Enter Into A Contract: the law views marriage is a contract. If either of the parties is not able to understand what it means to be married that contract can be determined to be void. The ability to understand the concept of marriage must have existed at the time of the marriage.

Additionally, an annulment may be granted on the grounds of age. If one of the spouses was younger than 16 years old at the time of marriage they may ask for an annulment on these grounds.

Fraud: if one of the spouses can prove there was an intentional misrepresentation of important facts and that that misrepresentation cause them to agree to the marriage this can be grounds for divorce. The party must be able to show that the only reason they got married was because of the fraudulent facts.

Duress: a marriage can be an old if one of the spouses entered into the marriage under duress.

Can I get spousal support or will I have to pay support to my spouse?

North Carolina spousal support depends on whether one spouse was dependent on the other spouse to support them. Not all cases involve support from one spouse to the other. This is typically decided on a case-by-case basis. Your divorce attorney will advise whether or not you have a viable claim for support based on the facts.

How will child custody be determined?

If there are minor children involved and the parents cannot reach an agreement with regard to the issues surrounding the children, the court will establish a child custody order. The court will award custody based on the circumstances that will promote the best interest and welfare of the child. All relevant facts will be considered. Joint custody to the parents can also be considered upon request. (N.C.G.S. § 50-13.2)