By Kathleen Miller
During the COVID-19 pandemic, quarantining couples are quickly learning they are not as compatible as they once believed they were. If you have decided that you and your spouse can no longer maintain a healthy relationship, here are some things to think about before moving forward with the absolute divorce process.
What is an Absolute Divorce?
An absolute divorce is a court order permanently terminating your marriage and removing any legal rights you had as a result of that marriage. North Carolina is a no-fault state, which means that you can file for divorce without having to show that your spouse did anything wrong. To be eligible for an absolute divorce, North Carolina requires that either you or your spouse have been a North Carolina resident for at least six (6) months prior to the filing. You and your spouse must also have been continuously separated for at least one (1) year and one (1) day before the divorce can officially be filed.
What does it mean to be separated?
Essentially, separation sounds just like what it is - a period of time apart from your spouse. However, if you plan on filing for divorce, North Carolina requires that you live in a different home from your spouse and intend for this separation to be permanent. Although you are not required to have any formal proof of your separation, you should consider speaking with an attorney about drafting a formal separation agreement. A separation agreement is a contract between you and your spouse deciding issues like the division of property, child custody, alimony, etc. When you have your hearing in court, you can request that the terms of this separation agreement be included in the final divorce order from the court.
You may also be eligible to request a forced separation, enforced by the courts, by filing for a divorce from bed and board (DBB). To do this, you must be able to prove that your spouse did one of the following six (6) things:
Abandonment of the family
Maliciously kicking you out of the home
Engaged in domestic violence
Committed an indignity
Excessive use of alcohol or drugs
It is important to have a reliable new living arrangement, as moving back into your shared home, even if you’re living in different bedrooms, restarts your separation period and prolongs the finalization of your divorce. Beware that these actions will terminate your divorce from bed and board order as well.
Filing for Divorce
Currently, it costs $225.00 to file for an absolute divorce. If you are unable to afford court costs, you may file a Petition to Proceed as an Indigent and the court will waive your fees if you are eligible. You will need to complete the following forms and bring them to the clerk of court where you or your spouse resides to begin your divorce proceedings.
Complaint for Absolute Divorce
Domestic Civil Action Cover Sheet
Servicemembers Civil Relief Act Affidavit
North Carolina courts offer an online service to file a complaint for absolute divorce at https://northcarolina.tylertech.cloud/SRL/SRL/ExecuteInterviews. You can also take advantage of North Carolina’s Divorce Packet, which outlines the forms, process, and important points to review prior to filing a complaint with the court. Before filing your divorce paperwork, be sure to consult with an attorney as failure to request spousal support, child support, or equitable distribution of your property or debts prior to obtaining a final divorce judgment prohibits you from obtaining these benefits in the future. You must assert your right to any financial support from your spouse or you permanently waive your ability to do so.
After filing this paperwork with the Clerk of Court, your spouse must be served with the Summons and Complaint. You may have your spouse served by having the sheriff deliver the paperwork, sending the forms through certified mail with a return receipt requested, or if your spouse is cooperative you may mail them an acceptance of service form. You are not allowed to serve your spouse yourself. You must then wait thirty (30) days for your spouse to file an Answer or request more time to respond before you can ask the Clerk of Court to set a hearing date. Once you have fulfilled your responsibility to properly serve your spouse with notice of the divorce proceedings, their attendance at the hearing is optional.
On your hearing date, you must arrive at the courthouse prepared to testify to the judge regarding the details of your marriage and separation. You should be able to tell the judge your address, your spouse's address, when your separation period began, why you’re seeking a divorce, present your marriage certificate, and provide any additional information requested by the judge. Your spouse is not required to attend court to proceed with the divorce; however, they will likely attend if they intend to dispute the divorce. You, as the filing party, are the only person required to be in attendance to move forward.
After your testimony, the court will consider your testimony and any additional evidence you presented to determine if you have submitted sufficient grounds for an absolute divorce. If the judge grants your divorce, you will present him/her with three (3) copies of a Judgment of Absolute Divorce. If both parties agree to the divorce, a hearing will last less than 30 minutes. However, be prepared to remain in the courtroom for a longer period of time if you or your spouse are contesting the divorce or requesting the courts assistance with additional matters such as child custody, alimony, or equitable distribution.
After your hearing, you must complete a Certificate of Absolute Divorce and deliver it to the Clerk of Court to sign. This certificate will be kept at the North Carolina Center for Health Statistics as proof that your divorce was finalized. Finally, if you are interested in changing your last name following your finalized divorce, you may file a Resumption of Former Name form with the court for $10.00.
Choosing to pursue an absolute divorce can be time consuming and emotionally taxing. If you are considering a divorce please reach out to the attorneys at Smith Dominguez, PLLC to discuss your options moving forward.
About the Author
Kathleen Miller is a third-year student Campbell University Norman Adrian Wiggins School of Law and a current law clerk at Smith Dominguez, PLLC. At Campbell, Kathleen is the president of the Black Law Student Association and serves as a peer mentor. Kathleen will graduate in May 2021.