Is North Carolina a No-Fault Divorce State?
Unlike some jurisdictions, proving “fault” is not required to file for divorce in North Carolina.
North Carolina authorizes divorce in two general instances:
- The married parties must be legally separated for at least one year (12 months)
- Incurable Insanity - Rarely if ever used in NC
North Carolina does not recognize Common Law marriage.
You do not need to show one party caused problems in the marriage and therefore is legally responsible for the separation and divorce.
As such, North Carolina is considered a no-fault divorce jurisdiction.
Fault, when appropriate, may still be “pleaded” in certain circumstances including alienation of affection claims, criminal conversation, abandonment, cruelty, or a general allegation of infidelity relative to alimony.
Such allegations are not necessary in order for a divorce to be granted.
They may become relevant if a dispute arises regarding Post Separation Support or “PSS,” alimony, and/or child custody depending on the nature and circumstances of the marriage.
The divorce laws in North Carolina do not require you to get divorced in the same state where you are married.
As long as you meet the requirements for jurisdiction of the Court, divorce is authorized.
Lawyers generally refer to that as the Residency Requirement in North Carolina.
The law requires one of the spouses seeking a divorce must have been a resident of North Carolina for a period of at least six (6) months immediately before the filing of divorce proceedings.
As such if you were married in Rock Hill, South Carolina and later moved to Charlotte, as long as you reside within the State of North Carolina for at least six (6) months, you may file for divorce in Mecklenburg County.
The Jurisdictional Residency Requirement cannot be waived by the parties or the Court.
Filing knowingly false statements (pleadings) with the Court is subject to Contempt Proceedings for committing a Fraud Upon the Court.
Being found in Contempt of Court may subject the offending party to fines, penalties, attorneys fees, and even jail time.
Some people think they can stop a divorce by simply refusing to consent.
That is a common misconception. It also isn’t the law in North Carolina.
The consent of both parties to get a divorce is NOT required.
As such, one of the spouses saying, “I'm not giving you a divorce,” has no legal effect in North Carolina.
That is not to say one spouse cannot make the process burdensome and unnecessarily difficult.
As long as you meet the requirements for filing for divorce in North Carolina, only one party to the marriage is necessary.
Service of Process of the official court documents, including a Complaint for Divorce, is a separate, important legal issue.
As long as you have lived in North Carolina for the minimum period of six (6) months, you can file for divorce even if your spouse lives somewhere else.
As is the case with many legal issues, it's important to discuss your legal options and responsibilities with an experienced Charlotte divorce lawyer.
Your spouse is still entitled to notice of the filing with the Clerk of Court and challenge the Court’s jurisdiction.
That often requires something called “Service of Process” of the Complaint for Divorce and associated claims by way of a Summons.
The NC Divorce Laws also require the opportunity to be heard, file responsive pleadings, and possibly make claims for Equitable Distribution, Child Custody, Alimony, and Child Support as may be applicable given the individual aspects of your marriage and family.
Serving those materials on your spouse in another jurisdiction can be a bit complicated.
Family Court Judges are required to confirm what divorce lawyers may call “good service” on the opposing party before granting a divorce.
Substantial legal rights, including division of marital property, child custody and visitation and support are often involved in such proceedings.
While the parties are not necessarily required to “consent” to getting divorced, the process must be fair.
Each party is given an opportunity to state their claims.
In the event the Court determines proper Service of Process has been effectuated and the opposing spouse chooses not to respond, there are procedures for moving forward with the divorce.
Getting divorced is a major “life event” that affects substantial legal rights.
Matters may be complicated if your spouse files in another state and jurisdiction is accepted by that Court.
That’s especially true in instances where another State has “accepted jurisdiction” (deemed itself the proper legal venue) for determining parenting rights, visitation, support, and alimony.
Consult legal counsel immediately.
Charlotte Divorce Lawyers
North Carolina follows established procedures and protocols for filing for divorce.
"Getting divorced takes more than just the expiration of time. There should be thought and planning behind filing for divorce."
- Bill Powers
Our law firm is available for legal consultations on matters involving Alienation of Affections, Divorce, Criminal Conversation, Child Custody, and complex Equitable Distribution in North Carolina.
Consultation fees do apply for Family Law matters. Furthermore, prior to speaking with one of our Charlotte lawyers, a conflict check is performed by the Powers Law Firm PA.
Call now for more information: 704-342-4357