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DIVORCE: Absolute Divorce

According to the Census Bureau, an estimated 2.5 million Americans are divorced every year. Research has shown that the stress caused by divorce is second only to the death of a spouse. Couples considering separation or divorce face the combined trauma of the break-up of their marriage, anxiety about their future and concern for their children. While many people go through separation and the divorce process, it remains a very personal and life-altering experience. Divorce is a stressful situation, but with a clear understanding of the law and your options, you can make informed decisions that offer the best chance for being satisfied with the outcome of your divorce – now and in the future.

The purpose of divorce is to dissolve a marriage and to sever the legal bonds that spouses have. In spite of many couples’ best efforts to save their marriage through counseling, trial separation and reconciliation, divorce may seem to be the only alternative.

Once a decision has been made to separate and divorce, several considerations should be addressed. While North Carolina will grant a divorce without regard to outstanding issues such as child custody, spousal support, child support, or distribution of property, it is important to take appropriate action regarding these matters to protect your rights.

While there are many personal reasons for divorce, the state requires a legally recognized cause to terminate the marriage. In North Carolina the legal dissolution of a marriage is called an “absolute divorce”. In the past North Carolina only granted divorces upon a showing of sufficient fault.  Today North Carolina is a no fault divorce state. The state provides only two grounds for an absolute divorce: 

  • Spouses have been living separately for at least one year and either spouse has been a resident of the state for at least six months. This is North Carolina’s “no fault” divorce, meaning that neither spouse is required to prove marital fault to obtain a divorce as long as they have met the requirement of living separate and apart for at one year. 
  • Spouses living apart for three years due to incurable insanity (although insanity is seldom used as grounds for divorce today). 

The state also has a legal separation in the form of a Judgment of Divorce from Bed and Board. This is a fault-based claim filed on a number of grounds including; abandonment, adultery, excessive alcohol or drug abuse, cruelty, personal indignities that make life burdensome or intolerable, and malicious turning of the other spouse outdoors.

Prior to filing a divorce complaint, it is important to ensure that you have taken relevant actions to protect your interests. Consider all issues related to child custody, child support, alimony and property distribution before you set the divorce process in motion. Think about your current and future needs and have a clear understanding of your legal rights and obligations. You must assert an alimony claim before the divorce judgment so that the claim is pending when the divorce is granted. If not, you will lose your right to do so. With few exceptions, a claim of equitable distribution (fair share of marital property) must also be asserted prior to the divorce judgment.

North Carolina allows divorcing husbands and wives to keep support, custody and property issues from going to court through “Separation Agreement and Property Settlement” contracts. In fact, most married couples resolve their differences without court intervention. However, approaching the divorce process constructively while in the emotional throes of the break-up in a marriage can sometimes be impossible.

Divorce is not an easy process from any perspective. However, it is important to look beyond the near-term emotions and concentrate on protecting your rights. The help of an experienced legal counselor can help ensure that your interests are protected and that you do not agree to provisions that you will regret sometime in the future. 

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Charles R. Ullman & Associates


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