Written by attorney Lloyd T. Kelso

Obtaining an Absolute Divorce

Obtaining an absolute divorce is necessary to change a spouse's status from married to single. If married, it is necessary to obtain an absolute divorce before a spouse can marry someone else. In North Carolina, there are two grounds for the court to grant an absolute divorce. Those two grounds are separation for more than one year and insanity. Only a sane spouse can seek an absolute divorce. But in most cases, most people who obtain an absolute divorce in North Carolina do so based on separation for more than one year. In proceeding on this ground you should consider the following:

  1. Jurisdiction: It is necessary for the plaintiff (spouse filing the suit) or the defendant (spouse being sued) to have been a resident of the State of North Carolina for more than six months preceding the filing of the case. If neither have been a resident for more than six months, then the court has no jurisdiction to hear the case.

  2. Separation: It is necessary for the parties to have lived separate and apart for more than one year preceding the filing of the case. Living separate and apart means exactly what it says. You cannot continue to live in the same residence, even if you have stopped sleeping together. I tell my clients that either one spouse or the other must have moved from the marital residence that they shared together at least one year before filing. If a spouse has moved back into the marital residence with the other spouse, that constitutes a resumption of the marital relationship. When that happens, the parties must again separate for one year before being entitled to file for an absolute divorce. If the spouses go out on a date or engage in an isolated incidence or two of sex, that does not constitute resumption of marital relations. I generally advise my clients that a good determining factor is whether the clothing of a spouse has been removed or returned to the former marital residence.

  3. Verification: Every complaint for absolute divorce must be verified under oath by the party seeking a divorce. Failure to verify the complaint is jurisdictional and may result in the judgment for absolute divorce being void for lack of subject matter jurisdiction.

  4. Service: Every complaint filed for absolute divorce must be accompanied by a summons. The summons and complaint must be properly served on the non-filing spouse. Service can be accomplished by acceptance of service (the non-filing spouse signing a document to indicate receipt of a copy of the summons and complaint, by personal service (the non-filing spouse receiving the documents through having them delivered by an officer or other person qualified to serve documents), by certified mail, or if no address is known for the non-filing spouse and that spouse cannot be found through due dligence than service may be accomplished by publication in a newspaper of general circulation.

  5. Court hearing: It is not necessary to have a court hearing to obtain an absolute divorce. However, in some cases, it may be necessary to have a court hearing, particularly whether other relief is demanded in the pleadings, such as incorporation of a separation agreement and/or property settlement agreement.

  6. Default Judgment: In most cases, attorneys obtain an absolute divorce by filing a motion for summary judgment which will be heard by the judge or by filing a motion for default which will be heard by the clerk of court.

Warning: Obtaining an absolute divorce changes your status from married to single. It also has other consequences including loss of the right to administer the estate of the other spouse. Unless a claim for alimony and equitable distribution of property has been properly asserted before the absolute divorce judgment is entered, those rights are lost forever. The judgment of absolute divorce also converts any property held as tenants by the entirety to a tenancy in common with the other spouse. These consequences should be thoroughly discussed with your attorney before proceedign with an action for absolute divorce or allowing the other spouse to obtain an absolute divorce. This is definitely one area of the law where the old axiom "If you snooze you lose" can come into play.

Additional resources provided by the author

See forms in: Kelso, North Carolina Family Practice (2008)

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