Types of Divorce in North Carolina

No-fault divorce

North Carolina is a “no-fault” divorce state.  Accordingly, the only requirement to receive a divorce in North Carolina is that you are a resident of North Carolina, and that you have been separated from your spouse for at least 12 months.  Neither party to the divorce is required to claim fault of their partner that leads to the breakdown of marriage.  However, a court may still take into account the behavior of the parties when dividing property and debts, evaluating custody, and considering whether one spouse should make support payments to the other.

Absolute Divorce

Once a married couple has been separated for at least a year, and one of the spouses has resided in North Carolina for at least six months, then either spouse is entitled to an “absolute divorce”, meaning that they are legally divorced.  This can be somewhat confusing, because people will often get divorced before other issues, such as child custody and support, property division, and spousal support have been disposed of.

Divorce from Bed & Board

A person who obtains a divorce from bed and board is not legally divorced.  This seems confusing – however, a divorce from bed and board is nothing more than a judicially authorized separation and can be granted in the following cases:

  • One spouse abandons the other;
  • One spouse throws the other spouse out of the house;
  • In situations where there has been domestic violence;
  • Where there is evidence of “indignities”;
  • There is excessive use of alcohol or drugs by one spouse; or,
  • Where one spouse has committed adultery

Contested vs. Uncontested Divorce

A contested divorce is one where the parties cannot agree on some aspect of the divorce.  Commonly contested issues include custody of the children, payment of spousal support, or how to divide assets and debts.  Where there are closely held businesses, or substantial real estate holdings, the valuations of the business or the property is often disputed.

An uncontested divorce is a divorce where the parties have agreed to all of potential issues and have entered into a Separation Agreement.  It is good practice for the parties to file this agreement with the court and have it incorporated into the final judgment of divorce, although this does not always happen.  Uncontested divorces are more common where the parties have little in the form of assets or property, no children, and spousal support is not an issue.

Collaborative divorce

Collaborative divorce is becoming a popular method for divorcing couples to come to agreement on divorce issues.  In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach(es). The parties are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.  Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely.

Most attorneys who practice collaborative divorce claim that it can be substantially less expensive than other divorce methods (regular divorce or mediation). However, should the parties not reach any agreements, any documents or information exchanged during the collaborative process can later be used in further legal proceedings, as the collaborative process is not a confidential proceedings absent some binding agreement that says it is confidential. Furthermore, there are no set enforceable time lines for completion of a divorce using collaborative divorce.

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. At the end of the mediation process, the separating parties have typically developed a tailored divorce agreement that can be submitted to the court. Mediation sessions can include either party’s attorneys or a neutral attorney or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all.  Divorce mediators may be attorneys who have experience in divorce cases or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters.  Divorce mediation can be significantly less costly, both financially and emotionally, than litigation.  The adherence rate to mediated agreements is much higher than that of adherence to court orders.

The type of divorce you have will dictate the overall cost of your divorce in terms of legal fees.

Return to NC Divorce Laws

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  • missy riddle

    i have been seperated since 2000 do i still need to go through court or am i divorced someone told me i was divorced because we have been seperated so long

    • James Hart, Esq.

      No – unless your spouse filed for divorce (and you didn’t know about it). You are still married and need to obtain a divorce through the courts.

  • craig

    I want a divorce, and I’m residing in Italy. We were married in NC, and I own property in Cumberland County. Is it feasible to do an uncontested divorce in this instance, or is retaining a lawyer the best course of action?

    • jameshartlaw

      Hi Craig – That’s a fairly loaded question. Under the right circumstances, you may be able to file for divorce in North Carolina. However, it may be difficult for you to appear in North Carolina for the final hearing if you are residing in Italy. If you would like to talk further about your situation, please feel free to call my office at (919) 460-5422 to schedule a phone conference. Thanks, and Happy New Year.

      Jim Hart

  • Alan

    Married one month and want a divorce. must we wait one year in n.c.

    • jameshartlaw

      Hi Alan,

      Unfortunately, yes. In North Carolina, you must be separated for an entire year to file for and obtain a divorce.

  • Secretstar

    My spouse is mentally incompetent. Do I have to be separated for a year to get a divorce?

    • jameshartlaw

      Yes. But you should probably talk to a lawyer about what “mentally incompetent” means – in certain situations it could actually lengthen the time you are required to be separated (such as if she is in a mental hospital).

  • jameshartlaw

    Hi Calvin – You can file for divorce in North Carolina. You can also serve your wife by publication, but I recommend doing everything you can to try and locate her. It will make the entire process much easier.

  • Maxwell

    Mr. Hart, I live in Florida and my wife lives in Cumberland County. We have been seperated for 7 months. She filed for a divorce while residing in Florida, then moved to Cumberland County. She just up and left my son and I, she rarely communicates with us. I have evidence that she has been engaged in adultry, furthermore, her paramour is constantly commenting on her Facebook page, in plain sight of my son, who often comments on their communication in a negative way. I countered her no fault divorce and filed for a divorce based on the adultery and abandonment. No mediation or agreements have been made. So, is it possible for me to file for a divorce in the State of North Carolina, even though there is an unresolved case here? I just want this to be over with for me and my son. Thank you.

    • jameshartlaw

      Hi Mr. Maxwell, since I am licensed in NC and Florida I can give you some guidance here. Feel free to call my assistant to schedule a phone conference at 919-460-5422. Look forward to speaking with you. Jim

  • bob D

    Mr. hart , me and my wife need to divorce sadly we both are in same home , she works I have small business and make near 3 times her salary . so I pay almost all bills mortgage cars etc. . all kids grown and gone . who leaves the home ? I when we moved here NC from NY some 8 plus years ago agreed to let her over time take more of her net pay toward her retirement as her company would match to certain point , now she gives approx. 10 plus % of her bi weekly net to her retirement acct . I gross little over 110 grand and as I said pay all so she has retirement plan irony I have NONE .. 2 cars both my name both I pay for hers as well .. so who leaves home she wont willingly its clear one thing she seems firm on yet I pay mortgage ? I I leave am I giving up home for a year as I pay rent and mortgage ? lost please guide me .
    sincerely
    Bob D

    • jameshartlaw

      Hi Bob,

      Thank you for your post. I don’t know where you are located – if you are somewhere close to the Raleigh-Durham-Cary area, I’d be happy to meet with you. If you are elsewhere, I recommend that you consult with a divorce lawyer in your local area.

      I’m sorry that you are in this situation.

  • Carrie Steinmetz

    My ex spouse and I have been separated over a year and hes been living in NC and I have been in NY. So technically we are legally divorce since we fall under the Absolute Divorce right? Thank you

  • tired of being lonely

    My husband and I have been house mates for a decade. He is in one room, I am in another. This was not my choice. It has been a very lonely life with no affection or “relations” for nearly 15 years. At this point, it would be creepy …like being with a stranger. But…I am still married and tied to this lonely life.

    ‘When we first moved to NC we bought a house until his father became ill and moved in with us. He sold his dads home and ours and we bought a new house. It is paid for but he had it placed in a trust between his dad (who has passed away) and himself. I have wanted to leave for a long time but could not afford 4 kids since I was a stay at home mom and home school parent. When we moved into the new house I worked form home and took care of his dad as well. Now our kids are almost grown. But if we divorce, I cant make bought money to live on my own. And I fear that because of the way he has the house titled I would not even get anything out of the house (remember the sale of our other home that was in mine and his name was put into this home which is in his and his dead father).
    The job I had working at home ended last year and I now work part time our side the home. for most of the 22 years we were married I was a total stay at home mom.
    If he and I divorce am I eligible for any support or part of the house?

  • jameshartlaw

    Hi Lynn, It is difficult to say for sure without talking with her directly. There are consequences to filing for Absolute Divorce – and she should be aware of them. Here is a podcast that I did on these issues:

    http://raleigh-divorce-lawyers.com/02-divorce-in-north-carolina

  • Lisad

    Hello. My husband and I recently separated I am pregnant and have a 7mth old . He cheated when I was pregnant with my 1st and now that we are separated he is cheating again. How to I get legally divorced from this man? And do I have rights to alimony ? I also have evidence that he cheated and know who he cheat with. Can I sue her?

    • jameshartlaw

      Hello Lisad – I’m very sorry about the situation you are in. Here is a podcast I recently did that discusses the legal requirements for divorce in North Carolina – http://raleigh-divorce-lawyers.com/legal-requirements-for-divorce-in-north-carolina

      As for alimony and suing the girlfriend – those are topics I will be including in future podcasts, but for now I recommend you contact a family law attorney in your local area. If you are in Durham or Wake County, you can reach our office at 919-460-5422.

      Once again – I am very sorry.

  • Allison Depatie

    I have been living with my daughter for a year in Massachusetts and my husband has been living in Charlotte, NC. I would like to start divorce proceedings. What do I need to do? I have not worked and my daughter has been staying rent free at my daughters. How do I prove I have been living apart from my husband.

    • jameshartlaw

      Hi Allison,

      Since you are living out of state I would recommend having an initial consultation over Skype to discuss your case and determine the appropriate course of action. Feel free to call our office at your convenience or fill out a contact form at http://raleigh-divorce-lawyers.com/contact and my legal assistant will be in touch to set something up.

      Thanks,
      Jim

  • Vee

    I’m married to a habitual cheater! If I can get his behavior on tape can I divorce him immediately, get the house and alimony.

    • jameshartlaw

      No. You must be separated for a full year in North Carolina to get a divorce. As to the house and alimony – it depends on a number of factors. You would need to consult with a lawyer on those issues.

  • GT

    My spouse reacquainted herself with an ex-boyfriend online and decided the grass was greener on the other side and left me to go live with him in NH. I also found out he had come down to NC and they stayed in a hotel together before her leaving. She left while I was at work and I came home to a half empty house. I want a divorce and she will not cooperate unless I pay her $2000 for what she claims are outstanding bills incurred while we were still living together. I don’t feel she deserves that as I was the money maker during the marriage and payed 80% of everything. What are my options?

    • jameshartlaw

      Hi GT – In order to go over all of your legal options, you would need to meet with a lawyer to discuss your unique situation. Other than that, once you have been separated in North Carolina for a year, you can file for divorce and there is virtually nothing she can do to stop the proceeding. However, when you get divorced, you give up significant legal rights in North Carolina – which is why I recommend that you speak to a lawyer first.

  • jameshartlaw

    Not in North Carolina. You must be separated one year.

  • gr

    My husband and I want to file an uncontested divorce and we have kids. The court clerk told me where to get a packet but said it doesnt cover custody. What do I need to do to make sure custody is covered in my divorce?

    • jameshartlaw

      Typically that would involve including a custody action with the divorce. You would be ordered to mediation and you could let the mediator know what your agreement is – they would draft an order to go to the judge.

    • jameshartlaw

      In North Carolina you can file separately for custody. It does not need to be part of the divorce. If you have questions on how to do this, you will need to contact an attorney.

  • Brian

    My wife and I are legally seperated and will be eligible for a divorce as of September 1st. I am in the military and will be out of the country and she is moving to New York. Is there a way to be able to get divorced while I am away? I will have access to email, a fax machine and post office. Thank you for your help.

    • jameshartlaw

      Yes. So long as you remain a resident and citizen of North Carolina. You can hire a lawyer here to handle all of the paperwork for you. If you need assistance, feel free to contact our office for more information.

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