In North Carolina, a divorce, legally termed an “absolute divorce,” is the formal end of a marriage. The state operates on a no-fault basis, meaning a spouse does not need to prove wrongdoing to be granted the final divorce. While fault is not a requirement for the divorce itself, it can influence related matters.
Eligibility for Absolute Divorce in North Carolina
To file for an absolute divorce in North Carolina, two requirements must be met. The first is a mandatory separation period, which requires that spouses live “separate and apart” for one continuous year before a divorce action can be initiated. 1North Carolina General Assembly. G.S. 50-6 This means residing in different households; living in separate bedrooms in the same house does not satisfy this requirement. During this time, at least one spouse must have the intent for the separation to be permanent.
The second requirement is residency. At least one of the spouses must have been a resident of North Carolina for a minimum of six months immediately before filing the divorce paperwork.2North Carolina General Assembly. G.S. 50-6 This six-month residency is a jurisdictional necessity for the court to hear the case. Once both the one-year separation and six-month residency conditions are fulfilled, either spouse may file a complaint to legally terminate the marriage.
Division of Marital Property and Debts
North Carolina law mandates “equitable distribution,” meaning assets and debts are divided fairly, though not always equally. The process involves classifying property as either marital or separate. Marital property includes nearly all assets and debts acquired by either spouse from the date of marriage until the date of separation, such as the marital home, vehicles, bank accounts, and retirement benefits.3North Carolina General Assembly. G.S. 50-20
Separate property consists of assets owned before the marriage, received as a gift or inheritance by one spouse alone, or acquired after the date of separation.4North Carolina General Assembly. G.S. 50-20 For instance, a car owned by one spouse before the wedding or an inheritance received from a relative remains that spouse’s separate property. The name on the title does not always control whether an asset is marital or separate.
When dividing marital property, courts presume an equal 50/50 split is equitable but can deviate from this based on several factors, including:
- The income and liabilities of each party
- The length of the marriage
- The age and health of the spouses
- Contributions one spouse made to the other’s education or career
The court also evaluates non-financial contributions, such as a spouse’s role as a homemaker, in determining a fair division. Spouses can also resolve property division outside of court through a legally binding separation agreement.
Spousal Support in North Carolina
In North Carolina, financial support is addressed through Post-Separation Support (PSS) and alimony. PSS is temporary support paid by a supporting spouse to a dependent spouse.5North Carolina General Assembly. G.S. 50-16.2A It is designed to meet the immediate needs of the dependent spouse during the separation period, before a final divorce or alimony order is in place.
Alimony is a longer-term form of spousal support ordered after the divorce is finalized. To receive either PSS or alimony, one spouse must be “dependent,” meaning substantially reliant on the other for financial maintenance, while the other is a “supporting” spouse.
Courts weigh numerous factors when deciding the amount and duration of support, including:
- The earning capacities of each spouse
- Their reasonable financial needs
- The standard of living during the marriage
- The duration of the marriage
Marital misconduct, particularly “illicit sexual behavior” by the dependent spouse, can bar them from receiving alimony.6North Carolina General Assembly. G.S. 50-16.3A Conversely, such misconduct by the supporting spouse can lead a court to order an alimony award.
Child Custody and Child Support Arrangements
When children are involved, courts make custody and support decisions based on separate legal standards. All custody determinations are guided by the “best interests of the child” principle.7North Carolina General Assembly. G.S. 50-13.2 The court can award legal custody (the right to make major life decisions) and physical custody (where the child lives), either solely to one parent or jointly to both. Factors considered include each parent’s ability to care for the child and any history of domestic violence.
Both parents have a legal duty to financially support their children. Child support is calculated using the North Carolina Child Support Guidelines, which employ an income shares model.8North Carolina Judicial Branch. North Carolina Child Support Guidelines This formula considers the gross monthly incomes of both parents, plus costs like health insurance and work-related childcare. The number of overnights the child spends with each parent is also a significant factor. Parents can formalize these terms in an agreement, or a judge will decide if they cannot agree.
The Legal Process for an Absolute Divorce
The legal process begins when one spouse files a “Complaint for Absolute Divorce” with the court. A copy of the complaint and a summons must then be legally “served” on the other spouse.
The other spouse has the opportunity to file an “Answer” to the complaint. If the divorce is uncontested, a judge can finalize it after a brief hearing or sometimes by motion without a hearing. It is important that claims for equitable distribution and alimony be filed with the court before the judge signs the final divorce judgment. Failure to raise these claims in a timely manner results in the permanent loss of the right to ask the court to divide property or award alimony.