Under North Carolina law, an Absolute Divorce is the legal process by which the legal bonds of matrimony are severed and all rights or obligations that arise out of marriage cease. In simple terms: a person’s legal status changes from “married” to “single.”

What about any property shared between spouses? What if there was a primary income-earner during the marriage upon which the other spouse was financially dependent? What about children? What if there was abuse in the marriage?

Simply put, an Absolute Divorce does not address any of these other matters that logically relate to a relationship, marriage, or divorce. This is particularly important because in many other states in the United States, such issues are addressed at the same time as the divorce. But this is not the case in North Carolina.

In most situations, marriages are dissolved by the filing of a Complaint for Absolute Divorce after the “one year of separation.” Once the Complaint is filed by one spouse, then the Complaint must be served upon the other spouse. Consent is not required for an Absolute Divorce to proceed. Marital misconduct or a reason behind the separation or dissolution of the marital relationship is also not required for an Absolute Divorce to proceed.  Rather, all the Court wants to know is that one party has the intent to end the marriage - as exhibited by the Complaint being filed - and that a year has passed from the spouses’ date of separation.

Once all procedural requirements have been met, a Judge will review the filings and notices to ensure that an Absolute Divorce can be granted. If so, the Judge will sign a Divorce Judgment which legally terminates the marital relationship. This Order will not address a parenting arrangement, financial issues, or property and debt matters. Instead, those claims are addressed in the following manner:

1.      Should the spouses also be parents of children they had together, then a parent can file a Child Custody claim to address parenting time and decision-making authority issues between the parents. Since children can be born within or outside of wedlock, a child custody claim is treated by the law as a completely separate legal claim than an Absolute Divorce.

2.      If one parent ends up primarily caring for the children and/or earns a lower income than the other parent, then child support may be applicable as well. Said parent should file a Child Support claim. Due to the same reason as child custody, a child support claim is treated by the law as a completely separate legal claim than an Absolute Divorce.

3.      It is possible that during the marriage, the spouses created roles in which there was a primary income earner and the other spouse primarily took care of the home or children. If this form of income dependency was created, then it is possible that the dependent spouse has the legal right to request spousal support from the supporting spouse after the date of separation. In North Carolina, there are two forms of spousal support: Postseparation Support and Alimony.

Important Note: Since an Absolute Divorce Judgment terminates marital obligations between spouses “absolutely,” a Postseparation Support Claim or Alimony Claim is to be filed with the Court prior to a Judge’s entry of an Absolute Divorce Judgment.

4.      Last, but definitely not least, is the reality that property may have been purchased or debts created during the marriage thus creating what we call the “marital estate.” Upon separation, either party may file an Equitable Distribution claim to pursue the “equitable” division of the marital estate. North Carolina law presumes that an equal (50/50) division of the marital estate is appropriate; however, this presumption can be overcome by various factors. Additionally, there are often disputes about what is part of the marital estate versus what is separate property.

Important Note: Since an Absolute Divorce Judgment terminates the legal bonds of matrimony, thus destroying the “matrimonial” characteristic of property and debts, an Equitable Distribution claim is be filed with the Court prior to a Judge’s entry of an Absolute Divorce Judgment.

Many people ask me, why do I have to wait an entire year to file for divorce in North Carolina? The Important Notes in 3 and 4 above are the why. In North Carolina, your ability to pursue important marital claims terminate when your marital relationship ends with the Divorce Judgment. Thus, the law provides an entire year in which these claims can be addressed either outside of the Courts or within the Courts once a claim is filed. Due to the legal complexities associated with the legal bonds of matrimony, it is imperative that you have a family law attorney in your corner. 

If you or somebody you know is navigating the divorce process, our team at Modern Legal is here to help.

Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country. 

Written by: Theresa E. Viera