In North Carolina, it is easy to get a divorce once you’ve fulfilled the requirements for our state. It doesn’t matter if your spouse wants a divorce or not. What matters is that you have grounds for divorce. In our state, proving you have grounds for a divorce is not difficult. However, a judge can deny the divorce complaint based on a lack of grounds. Let’s look at when a judge can deny a divorce, why they may do so, and what you can do if this happens to you.
How Do I Get My Divorce Papers in North Carolina?
In some states, there is at-fault divorce. In these cases, the divorce reason is related to a failure. The failure could be “the marriage is irretrievably broken” or “adultery.”
However, North Carolina has no-fault divorce laws. You don’t need any evidence to prove fault of any kind.
For either marital party to apply for divorce in North Carolina, you must meet specific requirements, called “grounds” for divorce.
The following 2 requirements are the most common grounds for a properly filed divorce. If you can prove that you’ve done both of the following and you’ve followed legal divorce process, the judge will sign off on your divorce.
1- Lived separately and apart on your own for at least one year.
This can’t be in the same house in separate bedrooms or in a basement. When you file for divorce, a judge may ask for proof that you met the requirements to live separately and apart for one year.
You may need to provide evidence of residency requirements, such as:
- Utility bills in your name only
- Lease or mortgage documents in your name only
- Bank account statements in your name only
- Driver’s license or state ID with your current address
- Any other documentation that shows you are living at a different residence than your spouse
2- One of you has lived in NC for at least 6 months as a resident of NC
In divorce cases in North Carolina, it doesn’t matter if your spouse lives in another state. As long as one party has lived in NC for at least 6 months, they can file for a divorce.
You can also file for divorce on grounds of incurable insanity, but there are many requirements to prove these grounds. Talk with an experienced divorce attorney if your spouse has been declared incurably insane and has been so for at least three years.
What If My Spouse Refuses to Answer Any Legal Process Server Papers
Default divorce happens when one party refuses to engage in any divorce proceedings. You may wonder, “When the other party will not answer any complaints or motions in a divorce case, does the court deny your divorce?”
The answer is that, even if your spouse refuses to participate, most judges will grant a default divorce as long as there are no procedural mishaps.
If You are the Spouse Who Submitted the Divorce Petition:
If you are the spouse filing for divorce and your ex won’t respond to any divorce paperwork you send, the Clerk of Superior Court (the judge) may grant a divorce if they find evidence that your spouse:
- Failed to appear
- Failed to answer the complaint
- Filed a waiver of the right to answer
- Is legally incompetent (unable to make decisions for themselves) (1)
If you are the filing spouse and don’t attend your hearing, it can result in dismissal. Even if your spouse fails to respond, you must attend the hearing or have your divorce lawyer do so.
Reasons a Judge Can Deny a Divorce
Reasons a judge might dismiss your filing and issue a divorce denial may include:
- If there is a problem with the divorce complaint you submitted, such as not listing the names of any minor children. In this case, you may need to start the entire process over due to procedural errors. “The Complaint is the paperwork you file with the Clerk of Court that asks the court for an Absolute Divorce. The Complaint consists of statements and facts about the parties’ marriage and separation, and a request that the Judge grant an Absolute Divorce based on the statements and facts.” (2)
- You and the other spouse continued sexual relations (not as “isolated incidences“)
- If you both decide to dismiss the filing (or if the filing party dismisses the divorce petition in a default divorce case)
- If the judge thinks your paperwork does not meet the proper legal conditions or contain enough evidence of your divorce grounds. However, “Your truthful testimony to the court, under oath, can prove your separation. You can also present other witnesses or documents. A separation agreement between you and your spouse can be helpful to show the court.” (1)
What If We Haven’t Settled our Child Custody Issues Yet?
If you have children born in your marriage in North Carolina, you can still seek an absolute divorce, even with unresolved issues.
Working with a family court, you may later resolve child issues such as:
However, working with an experienced divorce lawyer can ensure you do not lose marital rights to alimony or post-separation support.
What If It’s a Contested Divorce?
You possess marital rights during any separation period. However, without careful legal maneuvering, you can lose crucial rights once a judge signs a final divorce decree.
Your marital legal rights include issues such as:
- Equitable division of property
- Child support
- Child visitation
- Child custody
In a contested divorce, you and your spouse cannot agree on one or more of the above items. When this is the case, the judge often makes the decisions for you based on the evidence you present in court. You do not want to go through a contested situation without a divorce attorney!
In an uncontested divorce, you and your spouse work out your issues together. You may seek counseling or go through arbitration or mediation. Even though this is not a stress-free divorce, it is considerably less combative and judiciary.
Our Experienced Divorce Attorneys Can Help
At The Plekan Law Firm, our experienced divorce lawyers can answer all your questions about separation or divorce in North Carolina. Our attorneys work hard to protect your rights and ensure that you receive a fair outcome. Contact us today, and let us help you get the best possible result so you can move forward with your life!