A common question we are asked frequently is “Can I get a divorce?” The answer is relatively straight forward, which is why most lawyers accept a low, flat fee for handling a divorce (which in North Carolina is called “Absolute Divorce”. Here’s the requirements (in plain English):
1) Have you (or your spouse) lived in North Carolina for at least the last 6 months?
Why? Somebody has to be a North Carolina resident for at least 6 months, otherwise the court doesn’t have jurisdiction over the parties and therefore can’t adjudicate your rights under the law.
2) Have you been separated for more than 366 days (year plus a day)?
The statute says you have to be separated for been separate and apart for a year, and the courts view that as not counting the day you left, thus the “year + one day” requirement. Most attorneys wait until year plus 2 days to file, just to make sure there’s no grounds for interpretation, because the “punishment” for that would be to have to dismiss the original filing and re-file – a process that could add weeks to the process.
3) When you left, did you (or the other spouse) intend to leave the marriage?
For example, let’s say you leave on vacation on January 1 for a month long trip with your family. Around Jan. 25th, you decide, you know what, I’m leaving them!” Even though you left on Jan. 1, the “separation” period doesn’t start until you actually make the decision to leave the marriage, so you would have to wait until Jan. 27th the following year. However, if your spouse decided the moment you were gone to change the locks and just didn’t bother to tell you until closer to the time you returned, then you January 3rd you could get a divorce.
4) At any time during separation, did you resume the marital relationship
Why? That resets the “timer” on the second question). What is resuming the marriage? Generally, getting back together, “consummating the marriage”; moving back in for more than just a night, are all things that would say “yes”. Spending the night 1 time because you needed to pack up your stuff that you left behind, would not. However, note: The statute explicitly states “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.”
If you can answer yes to questions 1 – 3, and no to question 4, then you are eligible for divorce!
1) But my ex tells me they “won’t let me get a divorce”.
Well, North Carolina is a “no-fault” state, which means basically that if you can correctly answer the above 4 questions, then their consent is not required. Are there exceptions? Sure, but they are super limited (deployed military, mental incompentency, etc.). So in other words, you don’t need their permission. You can have a divorce anyways.
2) If I hire you, do I have to come to court and testify?
That is one of the best reasons to hire an attorney – you can usually avoid going to court at all! Unless there’s a disagreement over a material fact (i.e., involving one of those 4 questions above), then NO. Divorce can usually be granted by the clerk or in a summary judgment setting by a judge without a hearing or trial. Only if there’s a dispute about length of separation or resuming the marital relationship would you have to testify.
3) But they still have my stuff! What can I do?
Once a divorce is granted, almost nothing. So if they have your stuff (and you want it back), you have a couple options before you file for divorce: try and just get them to give it back (although if that would work, you probably wouldn’t be reading this); use a lawyer and/or mediator to try and negotiate a separation agreement with the other party, or file a claim with the court for Equitable Distribution (the court-assisted process of “getting your stuff back”). Remember, once the divorce is granted, you cannot file for equitable distribution, so if you are going to need the assistance of the court in getting our stuff back – ask for it before the divorce is granted.
4) What about support? I need money to live!
You can ask for Post Separation Support (PSS) and/or alimony, but you MUST DO SO BEFORE THE DIVORCE IS GRANTED. After it is granted, you can not come back and ask for PSS and alimony. PSS is a temporary, stopgap that covers the time between separation and divorce, and alimony covers the future, going forward from the divorce on.
5) But we have kids…. Do I have to do child custody and support before getting my divorce?
NO! Child custody and support is a separate action that is based on the best interest of the children. It can be filed at any time – during separation or after divorce. How you behave during a separation and divorce might (probably will) affect how the judge sees your child custody and support case, but it doesn’t impact your ability to file it (i.e. petition the court to review it and make an order).
6) I heard about a “divorce from bed and board” and you don’t have to wait a full year? What is that?
A divorce from bed and board, or DBB for short, is one structure under which parties can legally separate (the way we think of it is “forced separation” when one party refuses to leave or tries to force a spouse to stay in the marriage) – even though it is called “divorce”, it is a misnomer. You are still legally married (just separated) and in order to be divorced, you need to obtain an absolute divorce.
If you have questions about whether or not you can get a divorce, or want to consult an experienced and affordable attorney about assisting you in obtaining your divorce, contact one of our offices in Kernersville, Mount Holly and Boone today to setup a low cost consultation. We help clients from Burlington/Alamance County all the way to Boone and in Gaston & Mecklenburg Counties and would be glad to meet with you in person, over the phone or via video to help!
I would also like to thank my good friends at the www.scfamilylaw.com/blog/ and particularly Mr. Ben Stevens, an outstanding family law attorney in South Carolina for his help in allowing me to pick his brain and blog for topics that might help our client. If you need a South Carolina attorney, we highly recommend him and his firm!