An absolute divorce completely severs and terminates the marital relationship, and the parties are free to remarry. A court case must be filed to obtain an absolute divorce. Once the other spouse is served with a copy of the summons and complaint, he or she has 30 days to answer the complaint. If no answer is filed, a divorce judgment can be obtained after the 30-day period. If an answer is filed that admits the allegations of the complaint, the divorce can generally be obtained immediately.
It is important to know that a divorcing party’s right to equitable distribution of property and/or spousal support must be filed before the judgment of absolute divorce is obtained. If these rights are not protected by a filed pleading prior to the divorce judgment being entered, such rights are forever lost.
- A party to the divorce must be a resident of North Carolina for more than six months prior to filing an action for absolute divorce. There are only two grounds for absolute divorce in North Carolina: (1) separation for more than one year; and, (2) insanity of the defendant spouse. An insane party may not legally obtain an absolute divorce in North Carolina. Most parties obtain an absolute divorce based upon being separated for more than one year.
- A party is not eligible to file for an absolute divorce until one year following the date of separation, which is generally defined as not living together under the same roof. Parties who have separated, and then resumed marital relations, are not eligible to file for an absolute divorce until they have been living separate and apart for one year. However, isolated incidences of sexual intercourse by spouses do not constitute a resumption of marital relations under North Carolina’s divorce laws.
Divorce From Bed and Board
A divorce from bed and board accomplishes a legal separation of the parties. The spouse obtaining a divorce from bed and board gains valuable legal rights, such as the right to occupy the marital residence to the exclusion of the other spouse. The losing spouse loses valuable legal rights such as:
- the right intestate succession in the estate of the other spouse;
- all right to claim or succeed to a homestead in the real property of the other spouse;
- all right to petition for an elective share of the estate of the other spouse and to take either the elective share provided or the life interest in lieu thereof;
- all right to a year’s allowance in the personal property of the other spouse;
- all right administer the estate of the other spouse; and,
- any rights or interests in the property of the other spouse which by a settlement before or after marriage were settled upon the offending spouse solely in consideration of the marriage.
In addition, the losing spouse will most likely be removed from the marital residence.
Parties cannot consent to a divorce from bed and board. The action for divorce from bed and board is usually required when one spouse or the other refuses to separate voluntarily. The court, after hearing evidence, may grant a divorce from bed and board and require one party to move out of the marital residence. If both parties are at fault, the court will refuse to grant a divorce from bed and board to either spouse. A divorce from bed and board does not dissolve the marriage and does not grant to either party the right to marry another person.
A spouse who is the injured party, and is free of fault, is entitled to a divorce from bed and board where the other spouse:
- abandons his or her family;
- maliciously turns the other out of doors;
- by cruel and barbarous treatment endangers the life of the other;
- offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome;
- becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome; and/or commits adultery.
Although a divorce from bed and board may be alleged (usually in cases where the parties have not yet separated), in most cases the parties can reach an agreement to separate that avoids having to conduct a trial to decide the divorce from bed and board claim. However, where neither party will agree to a separation, a trial may be necessary.