N.C.G.S. § 50-6 is the statute in North Carolina that addresses absolute divorce. N.C.G.S. § 50-6 provides in part that “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 affect the rights of a dependent spouse with respect to alimony which have been asserted in the action or any other pending action. 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.”
The requirement that one of the parties to an absolute divorce, the plaintiff or the defendant, must have resided in North Carolina for at least six months before the filing of the divorce action is jurisdictional. Thus without one party having lived in North Carolina for the residency requirement of at least six months before filing for the divorce, the court will not have the jurisdiction to consider the divorce. The residency requirement has been defined as meaning one party is actually domiciled in North Carolina with an actual residence and the intent to remain permanently or for an indefinite period of time. The intent of a party to live in North Carolina at some future time is not enough, nor is it enough that a party have a residence in North Carolina – they must actually be domiciled at that North Carolina residence. The fact that a party is not a citizen of the United States is not required either. A party, for example, that is a German national and not a United States citizen, but that lives in North Carolina and intends to remains in North Carolina with no desire or intent to return to Germany, is a resident of North Carolina within the meaning of N.C.G.S. § 50-6.
The requirement that the parties live separate and apart for one year is jurisdictional. Thus if the parties have not actually lived separate and apart for at least one year, the court lacks the jurisdiction to consider the divorce. Living separate and apart meaning actually, physically living separate and apart; not in different rooms within the same residence. The parties must live in different residences for at least one year, and at least one party must intend for the separation to remain permanent.
North Carolina also requires that the divorce complaint be verified. This means that the party filing the action certifies and signs that they have read and understand the complaint, and intend to file the complaint. This is a jurisdictional requirement. Thus if a divorce complaint is not verified by the plaintiff, the court will lack the ability to consider the divorce. The complaint must be verified at the time of filing; it is not sufficient to obtain verification of the complaint before the complaint and summons are served on the defendant. When the plaintiff fails to verify the complaint, the trial court never obtains jurisdiction over the divorce action, and a divorce order entered in the action is void.
So how do I get an absolute divorce from my spouse? As long as you have lived in North Carolina for at least six months with the intent of remaining in North Carolina, and have lived separate and apart with the intent of remaining separate and apart from your spouse for at least a period of one year, you may file a verified complaint seeking an absolute divorce from your spouse. Once the verified complaint is filed, it must be served on your spouse and they have the opportunity to respond. The defendant may respond, and the parties may request that the court enter an judgment of divorce, or if the defendant does not respond, the plaintiff may file a motion for summary judgment with the court and provide the court with a proposed judgment of divorce. The court then may enter the judgment of divorce, and the parties will legally be divorced.
Do I file for separation? No. Separation happens once husband and wife begin living separate and apart and at least one of them has the intent to remain separate and apart.
Do I need an Agreement or Court Order to be legally separated? No. You are legally separated once you begin living separate and apart and at least one spouse intends to remain that way.
Is it okay if we continue living in the same house? No. Living separate and apart means you must be living in separate residences.