For most people, the idea of uncontested divorce means that they can obtain a divorce without a legal battle: the divorce action will be filed, entered by a judge, and everyone moves on. Whether or not this is a possible path will depend primarily on two things…
First, do you meet the statutory requirements for obtaining a divorce? In North Carolina, there are only two grounds for divorce: separation for one year accompanied by the intent of at least one spouse to remain separate and apart permanently, or incurable insanity of one spouse and living separate and apart for three consecutive years. (Anyone considering trying to sidestep the “separate and apart” requirement should review this article: We Don’t Want to Wait a Year to Get Divorced).
If you meet the criteria, and your spouse doesn’t dispute that you meet the criteria, you can probably move forward with the divorce itself in a relatively uncomplicated manner. On the other hand, if one party disagrees with the date of separation or that the parties were separated for the requisite time period, there would be an issue of material fact that a court would have to hear and decide – you now are in a contested divorce case.
Second, have you and your spouse settled all issues incident to marriage/divorce, such as property division and spousal support, custody and child support? If you have not already resolved these issues in a valid separation agreement or consent order, filing for divorce may trigger the other party to counterclaim for one or more of these claims. While the divorce itself may proceed as long as the statutory requirements for divorce have been met (see our article on the concept of divisible divorce), it probably won’t feel like an “uncontested divorce” anymore.
Ideally, you and your spouse have signed a separation agreement and/or consent order that not only acknowledges the date of separation but also addresses all of the issues that could be raised as counterclaims to a divorce filing; this way, you know that your divorce action can proceed through the court with minimal difficulty.
To learn more about filing for divorce or obtaining settlement documents in North Carolina, contact our office to day to set up a consultation.
