Separation, Divorce and Annulment

here are two types of divorce in North Carolina – Absolute Divorce, which is the dissolution of the marriage, and Divorce from Bed and Board, which is one way you may obtain a legal separation from your spouse.

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Absolute Divorce (Mutually Agreed Separation):

You and your spouse must be separated for a period of one year in order to obtain an absolute divorce in North Carolina. This means that you must not occupy the same physical residence and that you must show by action that you and your spouse are no longer living together as husband and wife. You must physically separate from your spouse. After a separation of one year, you are entitled to an absolute divorce.

You often hear the absolute divorce referred to as a simple divorce. It is important to remember that a claim for “Absolute Divorce” alone does not resolve other issues such as child custody, child support, equitable distribution, post-separation support, or alimony. Those claims are individually handled by your attorney. However, if a divorce is granted and you have not legally resolved or filed with the court your requests for property distribution or spousal support, those matters disappear and it is likely that you will not be able to claim them. A claim for absolute divorce simply means that the bonds of matrimony will be dissolved and that the two individuals will no longer be legally married to each other.

The dissolution of a marriage as a whole can be an emotional and traumatic event, but generally, the process of obtaining an Absolute Divorce is an anticlimactic event. A claim for absolute divorce is started by filing a Complaint about Absolute Divorce that is then sent to the opposing party along with a summons, advising that person that a suit has been filed against them. You will have sixty (60) days to serve the opposing party. If you are unable to serve your spouse within sixty (60) days, you will be required to issue another summons. Once your spouse has been served, he or she will then have thirty (30) days to answer your complaint and may get an additional thirty (30) day extension to answer your complaint. A court date may not be scheduled until after the Summons and Complaints have been properly served on the opposing person. If your spouse does not answer your complaint within the time allowed, we can file for a court date. Each county is different as to how they schedule their court dates so depending upon the county in which you reside, it may take several weeks to get a court date. Typically, it will most likely take seven to eight weeks from the time the complaint is filed until you actually receive your judgment of divorce.

Divorce from Bed and Board (Legal Separation)

If you and your spouse are unable to voluntarily separate from each other, you may have to file an action known as a Divorce from Bed and Board. A divorce from bed and board is sometimes referred to as a “legal separation” because such an action requires court intervention. A Divorce from Bed and Board asks the court to allow the parties to separate from each other without being “penalized” for separating from each other as Divorce from Bed and Board is a fault-based action. In essence, a party seeking this form of divorce is asking the Court for permission to separate. Oftentimes a party seeking a Divorce from Bed and Board will ask the Court to order one of the parties to leave the residence. However, it was not designed for that purpose. Courts have been known to order a party at “fault” to leave the marital home upon the entry of an Order for Divorce from Bed and Board by the presiding Judge.

Annulment

An Annulment of marriage means it is “Null and Void” and the marriage is treated as if it did not exist.

Marriage in North Carolina may be annulled if said marriage is:

• • • Between any two persons nearer of kin than first cousins; or
    • Between any two persons who are double first cousins; or
    • Between a male person under sixteen (16) years of age and any female; or
    • Between a female person under sixteen (16) years of age and any male; or
    • Between persons either of whom has a husband or wife living at the time of such marriage; or
    • Between persons either of whom is at the time physically impotent; or
    • Between persons either of whom is at the time incapable of contracting from want of will or understanding; or
    • A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within forty-five (45) days of the marriage which separation has been continuous for a period of one (1) year, shall be unless a child shall have been born to the parties within ten (10) lunar months of the date of separation
    • If an annulment is granted, the marriage is declared void from its inception or “void ab initio” and no rights of marriage will flow from an annulled marriage.

Conclusion

The end of a marriage is never easy for anyone. If you are in a position where you are ending your marriage, it is important you understand the basic differences so you can make educated choices with the help of your attorney.