How Do I Get a Divorce in North Carolina Based on Adultery?
Full Question:
Answer:
The answer will depend on whether you seek a divorce from bed and board or absolute divorce based on separation for a year. A divorce from bed and board may allege adultery as fault grounds for divorce. It may be inconsistent to claim you have children from the marriage if you are denying paternity. The trial court procedure for obtaining a divorce varies slightly from county to county. Many counties set a specific day of each week or month for the hearing of uncontested divorces. Different judges have their own rules for conducting these hearings. Check with the local clerk of courts to be certain that you understand the local customs. An attorney isn't necessary to get a divorce.
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.
It is possible for a paternity action to be made part of the divorce proceeding. We are prohibited from giving legal advice, as this service provides information of a general legal nature. We suggest you contact a local attorney who can review all the facts and documents involved.
§ 50-6. Divorce after separation of one year on application of either
party.
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.
The following are NC statutes:
§ 50-7. Grounds for divorce from bed and board.
The court may grant divorces from bed and board on
application of the party injured, made as by law provided,
in the following cases if either party:
(1) Abandons his or her family
(2) Maliciously turns the other out of doors.
(3) By cruel or barbarous treatment endangers the life of
the other. In addition, the court may grant the victim of
such treatment the remedies available under G.S. 50B-1, et
seq.
(4) Offers such indignities to the person of the other as to
render his or her condition intolerable and life burdensome.
(5) 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.
(6) Commits adultery.
§ 31A-1. Acts barring rights of spouse.
(a) The following persons shall lose the rights specified in
subsection (b) of this section:
(1) A spouse from whom or by whom an absolute divorce or marriage
annulment has been obtained or from whom a divorce from bed and board has
been obtained; or
(2) A spouse who voluntarily separates from the other spouse and lives
in adultery and such has not been condoned; or
(3) A spouse who wilfully and without just cause abandons and refuses
to live with the other spouse and is not living with the other spouse at
the time of such spouse's death; or
(4) A spouse who obtains a divorce the validity of which is not
recognized under the laws of this State; or
(5) A spouse who knowingly contracts a bigamous marriage.
(b) The rights lost as specified in subsection (a) of this
section shall be as follows:
(1) All rights of intestate succession in the estate of the other
spouse;
(2) All right to claim or succeed to a homestead in the real property
of the other spouse;
(3) All right to petition for an elective share of the estate of the
other spouse and take either the elective intestate share provided or the
life interest in lieu thereof;
(4) All right to any year's allowance in the personal property of the
other spouse;
(5) All right to administer the estate of the other spouse; and
(6) 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.
(c) Any act specified in subsection (a) of this section may be pleaded
in bar of any action or proceeding for the recovery of such rights,
interests or estate as set forth in subsection (b) of this section.
(d) The spouse not at fault may sell and convey his or her real and
personal property without the joinder of the other spouse, and thereby bar
the other spouse of all right, title and interest therein in the
following instances:
(1) During the continuance of a separation arising from a divorce from
bed and board as specified in subsection (a)(1) of this section, or
(2) During the continuance of a separation arising from adultery as
specified in subsection (a)(2) of this section, or during the continuance
of a separation arising from an abandonment as specified in
subsection (a)(3) of this section, or
(3) When a divorce is granted as specified in subsection (a)(4) of this
section, or a bigamous marriage contracted as specified in
subsection (a)(5) of this section.