North Carolina Divorce a Year After Separating or Signing a Separation Agreement

By Beverly Bird

North Carolina is somewhat unique among states in two respects: spouses can divorce without first resolving issues of custody, support and property, and the state has abolished fault-based divorce. Only two grounds exist for divorce: the incurable insanity of your spouse, or a one-year separation. Because most spouses are not incurably insane, this leaves many divorcing couples with only one option -- to separate a year before one of them files.

Terms of Separation

In North Carolina, separation requires literally residing in two separate households. After you and your spouse have lived separately for one year, and if you or your spouse was a resident of the state for six of those months, you can file for divorce the very next day. If you file for divorce and your spouse waives the right to answer your complaint, you can get a court date immediately and finalize your divorce. If he does not sign a waiver, you must wait out the 30-day period that North Carolina law gives him to file an answer. You do not have to file anything with the court at the beginning of your separation; you only have to state under oath, in your complaint, that you’ve lived apart for one year. Even if your spouse doesn’t want the divorce and he files an answer to your complaint, he cannot stop the divorce from happening if you’ve lived apart for the required time and you can prove it.

Separation Agreements

During the one-year separation period, North Carolina allows you and your spouse to negotiate a separation and property settlement agreement regarding issues of property, debts, custody and support. The agreement isn’t necessary for you to receive a divorce. However, without one, you’ll have no protection with respect to these things. If you and your spouse sign a settlement agreement, North Carolina law treats it as a binding legal contract, separate from your divorce. It’s enforceable in civil court, not family court. It goes into effect immediately when you and your spouse sign it, even if you haven’t been separated a year yet and can’t be officially divorced.

Subsequent Litigation

If you and your spouse do not sign a settlement agreement, you each lose your rights to litigate issues of property and alimony after your divorce is final. Although North Carolina does not require you to resolve these issues prior to divorce, the law blocks you from pursuing them later if you don’t. However, you can continue to address issues of custody and child support after you’re divorced. You can reach an agreement regarding these things and incorporate them into a signed settlement agreement post-divorce, or you or your spouse can open a subsequent litigation with the court so a judge can resolve them.

Other Options

North Carolina law distinguishes between absolute divorce and a divorce from bed and board, which is a form of legal separation. You can file for a divorce from bed and board on fault grounds, including adultery, cruelty or abandonment. However, you’re still married after you receive a decree for divorce from bed and board; the decree only establishes a court order for property, custody and support rights as opposed to a civil contract settlement agreement. You’re not free to remarry unless you receive an absolute divorce, which requires the one-year separation period if your spouse is not certifiably insane. Either you or your spouse can also ask the court to litigate issues of property. custody and support during absolute divorce proceedings. The law doesn't bar you from doing so; it just allows you to avoid it if you want to. You can request court intervention in your complaint, or your spouse can do so in his answering pleadings.