Do I have to prove my spouse committed a marital fault or that we have “irreconcilable”
differences in order to obtain a divorce? What is the basis for an absolute divorce in North
No, North Carolina is a “no-fault” divorce state. This means that it is not necessary to allege any
type of marital fault (adultery, abandonment, cruelty or indignities) in order to obtain an absolute
divorce in North Carolina.
Instead, North Carolina has enacted a “waiting period” approach to filing for absolute divorce.
An absolute divorce can be filed after one year of physical separation from your spouse. While
it is often helpful to have, a written document memorializing the physical separation is not
required to obtain an absolute divorce.
What does the North Carolina statute say about how to get a divorce?
North Carolina’s Divorce Statute reads as follows:
Marriages may be dissolved and the parties thereto divorced from the bonds of
matrimony on the application of either party, if and when the husband and wife have
lived separate and apart for one year, and the plaintiff or defendant in the suit for
divorce has resided in the State for a period of six months. A divorce under this
section shall not be barred to either party by any defense or plea based upon any
provision of G.S. 50-7, a plea of res judicata, or a plea of recrimination.
N.C. Gen. Stat. § 50-6
But what if my spouse and I had sex while we were separated? Can I still file for divorce?
Yes, you can still file for divorce.
Whether there has been a resumption of marital relations during the period of
separation shall be determined pursuant to G.S. 52-10.2. Isolated incidents of
sexual intercourse between the parties shall not toll the statutory period required for
divorce predicated on separation of one year.
What are the basic requirements to get divorced in North Carolina?
In order to file for an absolute divorce:
1. You or your spouse must be a resident of North Carolina and have been for at least
six months before filing for divorce.
2. You and your spouse must have been physically separated for at least one year and
one day before filing for divorce; and,
3. Either you or your spouse must have formed the intent that this physical separation
was intended to be permanent and that intent remained permanent during the time of
separation; in other words, you never reconciled.
How does my spouse receive a copy of the divorce filing?
Your spouse must be properly served with a copy of the civil summons and divorce complaint.
Generally, service is by certified mail, sheriff or acceptance of service. If service is by certified
mail, then an affidavit of service is required. Acceptance of service only occurs when your
spouse is represented by an attorney. Your lawyer will assist you with proper filing and service
of the civil summons and divorce complaint.
Do I have to appear and testify in court in order to get divorced in North Carolina?
No, in certain circumstances, divorces are entered by the Clerk of Court or by Summary
Judgment. But you have the right to appear and testify if you prefer.
What is the impact of an absolute divorce in North Carolina?
In addition to concluding the legal relationship of marriage, entry of an absolute divorce can
terminate the right to seek equitable distribution, alimony and/or post separation support. Please
consult with an attorney prior to entry of an absolute divorce to ensure your legal rights as to
these issues are preserved and protected.