When a marriage ends, the terms “dissolution of marriage” vs. “divorce” come up. Many people use these terms interchangeably. In this blog post, we will break down the differences between the dissolution of marriage and divorce. Whether you’re facing marital issues yourself or want to understand the legal landscape, find out how divorce works in North Carolina.
What is Dissolution of Marriage vs. Divorce in North Carolina?
The terms “dissolution of marriage” and “divorce” have similar meanings in North Carolina.
A Divorce is a legal action that brings about the Dissolution of a Marriage. In North Carolina, Absolute Divorce is the legal termination of a marriage.
Whether you struggle with irreconcilable differences for religious reasons, habitual drunkenness, gross neglect, extreme cruelty, or other reasons, marriage dissolution requires only that you live separated and apart for one year.
What is a Legal Separation in NC?
Divorce requires a no-fault process, where neither party is legally required to prove that the other spouse did something wrong. The couple must be separated for at least one year, living apart with the intention of ending the marriage, as stipulated by NC. Gen. Stat. § 50-6.
However, there are other grounds a couple may use to get a divorce in NC. These include:
- Incurable insanity and living apart for at least 3 years, as per NC. Gen. Stat. § 50-5.1.
- If a marriage was formed in a way that goes against the rules in the section of North Carolina law that deals with marriage, either person in the couple can ask the local district court to say that the marriage was never valid. NC. Gen. Stat. § 50-4.
What is the Fault-Based “Divorce” From Bed and Board?
A confusing element of North Carolina law is “Divorce from Bed and Board.” This type of “divorce” is NOT an actual divorce in the sense of dissolution of a marriage. Instead, it is a court-ordered way to find agreements to live by during separation.
Only marriages with particular issues can use this court-ordered separation process. To ask for court involvement during your separation period and obtain a “divorce” from bed and board, you must have one of the following issues in your marriage:
- Abandonment of the Family
- Malicious Turning Out of Doors
- Cruel or Barbarous Treatment Endangering the Life of the Other
- Indignities Rendering the Condition of the Other Intolerable
- Excessive Use of Alcohol or Drugs Making Life Burdensome
These grounds for a “Divorce from Bed and Board” are explicitly defined in North Carolina under NC. Gen. Stat. § 50-7. It is a complex area of law and may require professional guidance to navigate. Understanding the differences between this form of separation and actual divorce can help you determine the most appropriate course of action for your unique situation.
What Happens During Legal Separation?
Legal separation is a distinct phase in ending a marriage in North Carolina. It’s a time when spouses live apart but are still legally married.
Here’s what you need to know about legal separation in NC:
Living Apart: The spouses must live in separate residences. Cohabiting, even in different rooms, does not count as legal separation.
Separation Agreement: While not required by law, many couples choose to draft a Separation Agreement. This document can outline the division of property, child custody arrangements, spousal support, and other matters related to the separation.
One-Year Waiting Period: According to NC, legal separation must last for at least one year and one day before either spouse can file for Absolute Divorce. Gen. Stat. § 50-6.
No Need to File with the Court: Unlike some states, North Carolina does not require spouses to file anything with the court to become legally separated. The separation begins on the day the spouses start living apart.
Marital Rights Remain Intact: During legal separation, spouses retain certain marital rights, including potential rights to inherit from each other.
New Relationships and Legal Implications: In most situations, you can start dating again after separation. However, continuing a romantic relationship with someone else during legal separation might have legal implications. If you were involved with someone other than your spouse before separating, and that relationship continues post-separation, it could be evidence of adultery during marriage. And if a spouse can prove adultery during a marriage, you may face severe ramifications regarding alimony and child custody.
Understanding the intricacies of legal separation in North Carolina can help individuals navigate this challenging time with greater confidence and clarity. Knowing the legal framework and considering professional guidance may ease the transition and help set the stage for a smoother process toward divorce and dissolution.
How Does the Divorce Process Work?
In North Carolina, obtaining a divorce follows specific steps guided by state laws. Below is an overview of how the divorce process typically unfolds:
Separation Period: According to NC. Gen. Stat. § 50-6, spouses must live separately for at least one year and one day with the intent to legally end the marriage before they can file for divorce.
Filing a Complaint: The spouse seeking the divorce (the plaintiff) must file a Complaint for Absolute Divorce in the county where either spouse resides.
Serving the Complaint: The other spouse (the defendant) must be served with the divorce papers, which can be done through various methods outlined in NC. Gen. Stat. § 1A-1, Rule 4.
Response from the Defendant: The defendant has 30 days to respond to the complaint. The plaintiff can proceed with a default judgment if there’s no response. This is called a “Default Divorce.”
Waiting Period: Depending on the county’s schedule and the complexity of the person filing the case, there may be a waiting period after filing.
Hearing: If everything is in order, the judge may grant the divorce decree without a hearing. In contested cases, a hearing may be necessary.
Final Judgment: The judge issues a Judgment of Absolute Divorce, legally ending the marriage. NC governs this in Gen. Stat. § 50-11.
Division of Property, Child Custody, and Support: You may address these matters separately from the Absolute Divorce, either through negotiation, Separation Agreement, or court order. NC specifically governs property division in Gen. Stat. § 50-20. However, the court may not grant an absolute divorce if you and your spouse have not settled these issues before filing for divorce and dissolution of marriage.
Potential Appeals: Either party can appeal the judgment if they disagree with the decision, as outlined in the North Carolina Rules of Appellate Procedure.
The divorce process in North Carolina is detailed and governed by various statutes. Navigating this process may seem daunting, but understanding the legal steps can make it more manageable.
Seeking legal assistance ensures you meet all legal requirements and protect your rights.
Matters to Settle With Your Spouse Before Filing For Divorce
Determining how to divide marital assets and debts is crucial. This includes decisions about homes, cars, retirement accounts, and how you will pay any joint debts.
Child Custody and Visitation
For couples with children, establishing custody and visitation arrangements is vital. This includes physical custody and a visitation schedule.
Calculating and agreeing on child support payments involves considering the children’s needs, parents’ income, and other relevant factors.
Spousal Support (Alimony)
This involves determining if one spouse will provide financial support to the other, the amount of that support, and its duration.
Health Insurance and Medical Expenses
Deciding how you will handle health insurance and uninsured medical expenses is an essential part of the process.
Retirement Accounts and Pensions
Addressing the division of retirement funds and pensions may require specific legal documents. Consult with your divorce attorney to discuss this part of the divorce agreement.
Understanding the tax implications related to divorce, including filing status and handling joint investments, is an essential step.
Future Dispute Resolution
Agreeing on how to handle future disagreements, such as with mediation or arbitration, can prevent conflicts down the line.
By addressing these topics in a separation agreement, couples can make the divorce process in North Carolina smoother and more amicable. Engaging legal professionals to ensure the agreement’s fairness and clarity may be a wise step, helping to minimize uncertainty and conflict during a challenging time.
Our Experienced Divorce Attorneys Can Help
At Plekan Law, we understand that going through a divorce is an emotionally challenging and legally complex process. Our experienced divorce attorneys are committed to guiding you through each step of the North Carolina divorce procedure, ensuring your rights are protected.
Whether it’s negotiating a fair separation agreement, handling child custody matters, or representing you in court, our team is here to provide personalized support tailored to your unique situation. With our extensive knowledge of NC divorce laws and a dedication to achieving the best possible outcome for you, Plekan Law is the partner you can trust during this critical time.
Get in touch today and talk with us about how we can help.