Can One Mate Refuse a Divorce in North Carolina?
By Heather Frances J.D.
In North Carolina, a spouse who doesn’t want a divorce can make the process take longer and cost more, but he cannot prevent it from happening if the other spouse is determined to divorce. You cannot actually refuse to get a divorce since North Carolina does not require that both spouses agree on divorce in order for the court to grant it.
North Carolina courts can grant divorces for only two reasons: separation for at least one year -- the most common reason -- or incurable insanity and separation for three years. It is not necessary for either spouse to prove fault. Instead, spouses must simply live “separate and apart” for at least a year. The spouses must live in separate residences to qualify; it is not enough to live in separate parts of the same house.
Once a couple has been living separately for at least a year, either spouse can begin the divorce process by filing a complaint for divorce, addressing key issues like property division and custody. She must serve a copy of this complaint, along with a summons and other appropriate paperwork, on her spouse. The responding spouse has 30 days to file a response; if he does not want the divorce, he can respond to the complaint with counterclaims, such as demands for support or property division. This may delay the divorce process by injecting conflict. Either spouse can also claim the other spouse committed marital misconduct, such as adultery, but this will not impact the court’s ability to issue the divorce. However, it may affect some terms of the divorce, like alimony.
Spouses can reach agreement about terms of the divorce and the court will adopt their agreement into the divorce decree. However, if one spouse refuses to agree, the court could order mediation for issues like custody and visitation. If the couple still cannot come to an agreement on any or all terms, the case will proceed to trial where the judge will determine the terms of the divorce.
If a spouse simply chooses not to respond to a divorce complaint because he doesn’t want the divorce, the divorce process can proceed without his input. The spouse who filed for divorce can ask the court to enter a default divorce by filing a Motion for Entry of Default. A default divorce has the same legal effect as a divorce where both spouses make an appearance with the court, but the spouse who does not respond does not get to have the court hear his side.
Heather Frances has been writing professionally since 2005. Her work has been published in law reviews, local newspapers and online. Frances holds a Bachelor of Arts in social studies education from the University of Wyoming and a Juris Doctor from Baylor University Law School.