Separation and Divorce

Absolute divorce is the dissolution of the marital bonds existing between two people. Entry of a judgment of absolute divorce will terminate all rights arising out of the marriage (for example, intestate inheritance or rights to marital property) and permit the parties to remarry someone else.

In North Carolina, there are two grounds for absolute divorce: incurable insanity and separation of one year.

Absolute divorce based on incurable insanity requires that the parties live separate and apart for three years because of the incurable insanity of one of them. The party petitioning for a divorce on these grounds must put forth extensive evidence proving that the other spouse is incurably insane, including expert testimony from physicians or an adjudication of insanity.

Absolute divorce based on separation of one year is by far the more common ground used. North Carolina General Statute § 50-6 requires that the parties have lived separate and apart for one year and that at least one of the parties has resided in North Carolina for six months. Living “separate and apart” means that there must be both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation.  The parties must be living in separate residences; separate rooms or areas of the same house will not suffice.

Marital property, spousal support, custody, and child support will not be addressed during a claim for only absolute divorce. It is important to make sure that claims related to marital property and spousal support have been raised or resolved prior to entry of divorce, or these claims will be lost permanently.

Contact our firm today if you are considering divorce or need assistance with filing for divorce.

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