Many people want a quick and easy way to divorce from their spouse, especially when there is not any property to distribute or when neither spouse is asking for support.
A common question I receive is “what is required to file for divorce?”
Our law on divorce, N.C. General Statutes § 50-6, states that:
“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.”
This means the only requirements for divorce in North Carolina are that you or your spouse must have resided in North Carolina for at least six months and that you have lived separate and apart from each other (for the purpose of divorce) for a period of at least one year.
I find many clients are surprised to learn that in North Carolina you must be separated for a year before you can file for divorce and the next common questions that I receive are: What does it mean to live separate and apart? What if you can’t afford to live separately?
The unfortunate truth is that today many couples are worried about the cost of divorce and living separately and will choose to live in the same home, but sleep in separate bedrooms. Unfortunately, our laws do not consider this being separated for the purposes of divorce in North Carolina.
In a North Carolina case where a couple lived together, but did not have sexual relations or share a bedroom, our Court of Appeals found they had not lived separate and apart as required for divorce. (Ponder v. Ponder, 32 N.C. App. 150, 230 S.E.2d 786 (1977)). In this case, the court also had evidence the parties ate meals together, the parties used each other’s car and one spouse provided support to the other. Here the court also said that our law implied that living apart means that the parties should hold themselves out so that those in the neighborhood may see that the husband and wife are not living together.
Separation not only requires living apart, but also requires that the parties hold themselves out to be separated as well. This means it is important to be sure you are holding yourselves out to be separated. Couples that routinely hold themselves out to be a couple by regularly eating meals together, attending family functions together, or attending church together may not be considered living “separate for the purpose of divorce.”
Another common question a receive is “can we still get divorced if we have had sex in the past year?” The answer is it depends on how often and routine the sex was, and whether the sex was a part of an attempt at resuming the marriage or not.
Generally speaking, isolated incidents of sexual relations will not interrupt the one-year separation period. However, if a couple moves back in together and attempts to reconcile or resume the marriage, the one-year period starts over.
It should also be noted that you may also get divorced if you have lived separately for three years and you can prove your spouse is incurably insane.
If you are considering divorce, it is key to seek advice from a family law attorney. Divorce will have a serious effect on your property rights and spousal support. A small fact can make a big difference in the best plan for you. Having a consult before filing for divorce, could save a great deal of time, money and stress later. Contact us today to speak with a family law attorney who can through your options and the specific issues in your case.