Divorce is the permanent dissolution of marriage. It is a major change, which may affect finances, living arrangements, jobs, schedules, emotions, relationships, and children. Divorce can be a painful, difficult, and confusing process, especially for families with young children. Before contemplating divorce, it is highly recommended that you seek marriage counseling, which may help save your marriage. Often, a husband and wife just need help understanding what went wrong in their marriage, how they may learn and grow from their differences and mistakes, and how they may move on in a happy union.
Although the separation and divorce process does not require the assistance of an attorney, an attorney may help you decide how to best proceed. Divorce is more than simply separating from your spouse; you must consider the potential economic ramifications that accompany divorce. Navigating the legal processes associated with divorce can be confusing, time-consuming, and expensive. The time and effort you put into doing your own divorce may very well cost you just as much, or even more, than it would to hire a divorce lawyer to handle your matter.
In North Carolina, the most common way to obtain a divorce is to prove that the husband and wife have been continuously separated for more than one year. The parties must live separate and apart during this period: separate bedrooms in the same house will not suffice to establish continuous separation. Also, the husband and wife may not live separately but continue to maintain an outward appearance of marriage. In addition to separation, at least one spouse must not want to resume the marriage. Both parties need not agree to the divorce.
In order to file for divorce, either the plaintiff or the defendant must have resided in North Carolina for at least six months. While personal jurisdiction is not required to effectuate a divorce, it is needed to adjudicate financial matters such as alimony, property division, and child support.
A party may also file for divorce from his spouse in cases of incurable insanity. The sane party must provide proof of his spouse's incurable insanity. The parties must have lived separate and apart continuously for a three year period before filing for divorce under incurable insanity.
Reconciliation may be a defense to absolute divorce when marital relations resume. A court will consider the totality of the circumstances in determining whether marital relations have resumed. Isolated sexual acts, for example, may not constitute the resumption of marital relations. Holding yourself out as husband and wife, on the other hand, may show intent that the parties intend to resume their marriage.
North Carolina is a no-fault divorce jurisdiction. This means that neither party is required to show marital fault on behalf of their spouse. All that is required is the one-year separation period and the filing of the appropriate paperwork. It is important to note, however, that divorce ends all rights arising from the marriage that are not pending at the time of divorce. Thus, a party must file a claim for alimony and equitable division before the entry of the judgment of divorce. If there is no pending claim with the court at the time the absolute divorce process is finalized, the parties will be forever barred from making such a claim.
Divorce from Bed and Board
North Carolina also recognizes divorce from bed and board, which is a fault-based legal action. Divorce from bed and board, however, does not dissolve the marriage. Instead, divorce from bed and board is a court-order legal separation. The parties are, therefore, still legally married. The court may, however, address temporary and permanent alimony, child custody, and child support.
In North Carolina, under N.C.G.S. 50-7, to qualify for divorce from bed and board, a party must show:
Abandonment of his or her family
Maliciously turning the other party out of doors
Cruel or barbarous treatment, which endangers the life of the other
Offering indignities so as to render life intolerable and burdensome
Potential defenses to divorce from bed and board include:
Condonation - the plaintiff has forgiven the defendant's marital fault
Connivance - the plaintiff has encouraged the defendant's misconduct and/or marital fault
Collusion - the plaintiff and the defendant agree to manufacture a grounds for divorce from bed and board
Recrimination - the plaintiff is also at fault
It is important to note that reconciliation is not, alone, enough to extinguish a cause of action. The plaintiff must dismiss the action for divorce from bed and board or it will continue.
Annulment is a legal procedure, which declares a marriage null and void. In North Carolina, the grounds for annulment are limited. Annulment is only available for defective marriages that are legally void or voidable.
A void marriage is a null marriage. In other words, the parties were actually never married at all and they may not ratify the marriage. In North Carolina, the only ground for a void marriage is bigamy. Bigamy occurs when one party is already married. A party that is already married may not marry again until the party is divorced. Since the marriage is void, technically, no annulment is needed. It is recommended, however, that an annulment be obtained so that the annulment is legally acknowledged by the court. This will help a party avoid confusion in the future from a legal and personal standpoint.
A voidable marriage, on the other hand, is treated as valid until it is annulled. Only the protected party may seek that the marriage be annulled. Additionally, a voidable marriage may be ratified. A party may seek an annulment for a voidable marriage if:
The parties are too closely related (closer than first cousins in North Carolina)
If either party is under 16 years of age
If a party is physically impotent and has knowledge of this at the time of marriage
If a party is incapable of contracting at the time of marriage (examples may include: duress, undue influence, and intoxication)
If a female represents to the male that she is pregnant, the parties separate within 45 days of the marriage, the separation is continuous for one year, and the female doesn't give birth within 10 months of the separation
What is the effect of an annulment? If parties receive an annulment, it is as if they were never married at all. While post-separation support may be available, a party may not seek permanent alimony. Any children born from the annulled marriage will remain legitimate, and child support may be awarded. No equitable distribution, however, may be made. Any property will remain separate as if the parties were never married.
No one wins in a divorce. While separation and divorce may ultimately be for the best, and eventually lead to happier lives, both sides will experience some type of pain. At Adkins Law, the goal is to make the entire process as quick, easy, and painless as possible. If you have questions about divorce or the divorce process, please contact Adkins Law to schedule a consultation with a divorce lawyer. Adkins Law is located in Huntersville, and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area.