- For Attorneys
A divorce may be granted in North Carolina based upon the incurable insanity or mental illness of one of the spouses, or upon the parties living separate and apart for a period of one year without cohabitation. North Carolina law provides for a simplified divorce procedure as follows:
If the parties are seeking a divorce based upon the parties having lived separate and apart without cohabitation for a period of at least one year, and the parties have agreed to all terms of the divorce, leaving no issues to be decided by the court, the court may grant the divorce, finding all requisite facts from nontestimonial evidence presented by affidavit, verified motion or other verified pleading. It shall not be necessary to allege in the complaint that the grounds for divorce have existed for at least six months prior to the filing of the complaint.
A party seeking to obtain a divorce under this provision may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. 50-10, G.S..1A-1, Rule 56
In North Carolina, proper venue for the divorce action is the Superior or District Court. The action should be filed in the county where either party resides. The party filing the action for divorce is the Plaintiff, while the other party to the action is referred to as the Defendant.
North Carolina is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court's discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the following factors:
1. The income, property, and liabilities of the parties;
2. Any obligation for support from a previous marriage;
3. The duration of the marriage and the age, physical and mental health of the parties;
4. The needs of the custodial parent;
5. The expectation of pension, retirement or other deferred compensation rights that are not marital property;
6. The contribution to the decation or earning potential of the other spouse; and,
7. Any other factor the court deems just and proper.
The following is a NC statute:
§ 50-6. Divorce after separation of one year on application of either
Marriages may be dissolved and the parties thereto divorced from the
bonds of matrimony on the application of either party, if and when the
husband and wife have lived separate and apart for one year, and the
plaintiff or defendant in the suit for divorce has resided in the State
for a period of six months. A divorce under this section shall not be
barred to either party by any defense or plea based upon any provision of
G.S. 50-7, a plea of res judicata, or a plea of recrimination.
Notwithstanding the provisions of G.S. 50-11, or of the common law, a
divorce under this section shall not affect the rights of a dependent
spouse with respect to alimony which have been asserted in the action or
any other pending action.
Whether there has been a resumption of marital relations during the
period of separation shall be determined pursuant to G.S. 52-10.2.
Isolated incidents of sexual intercourse between the parties shall not
toll the statutory period required for divorce predicated on separation
of one year