In North Carolina, divorce is referred to as Absolute Divorce.
Residency Requirement:
Either spouse must have resided in the State for a period of six months.
Military Personnel:
If a Plaintiff, filing spouse, or Defendant, other spouse, has resided or been stationed at a U.S. army, navy, marine corps, coast guard or air force installation or reservation or any other location pursuant to military duty within North Carolina for a period of six months prior to filing for divorce, it will constitute compliance with the residency requirement, as long as the Defendant is either served personally or accepts service, within or without the State as provided by law.
Filing:
The Plaintiff may file a Complaint for Divorce in the county where either she/he or the Respondent has resided for the prior six months.
Spouse’s Name:
Any woman whose marriage is dissolved by a decree of absolute divorce may, upon application to the clerk of court of the county in which she resides or where the divorce was granted, change her name to any of the following:
Her maiden name;
The surname of a prior deceased husband; or
The surname of a prior living husband if she has children who have that husband’s surname.
A man whose marriage is dissolved by decree of absolute divorce may, upon application to the clerk of court of the county in which he resides or where the divorce was granted, change the surname he took upon marriage to his pre-marriage surname.
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Legal Grounds for Divorce
There are only two grounds for absolute divorce in North Carolina:
1. The husband and wife have lived separate and apart for three consecutive years, without cohabitation, by reason of the incurable insanity of one of the spouses; or
2. The husband and wife have lived separate and apart for one year.
Grounds for divorce must have existed for at least six month prior to filing.
Annulment
In North Carolina, only a bigamous marriage is automatically void and does not require court action to make it so. A bigamous marriage is one where either party to the marriage already has a husband or wife living at the time of the subsequent marriage. This differs from a voidable marriage, which requires a court order.
A voidable marriage requires a court order of annulment to declare the marriage void. That means the marriage is considered to have never existed. The marriage is not automatically void, but requires a District Court declaring it so. Upon application by either party to a marriage contracted contrary to the Prohibitions contained in the North Carolina Marriage statutes, the district court may declare the marriage void from the beginning.
In North Carolina there are only certain narrow circumstances in which a marriage can be declared void. One of the following criteria must be proven in District Court to have a marriage declared void:
The parties are nearer in relationship than first cousins;
The parties are double first cousins;
Marriages between a male person under 16 years of age and any female, unless there is a court order as a result of a pregnancy of one between the ages of 14 and 16;
Marriages between a female person under 16 years of age and any male, unless there is a court order as a result of a pregnancy of one between the ages of 14 and 16;
Either of the spouses is physically impotent, as medically diagnosed by a doctor;
Either of the parties is mentally incapable of entering into a contract to marry, as determined by the court on a case-by-case basis; or
A marriage contracted under the representation and belief that the wife is pregnant, followed by the separation of the parties within 45 days of the marriage, where the separation was continuous for a period of one year, unless a child was born to the parties within ten months of the date of separation.
No marriage, except for a bigamous one, which is followed by cohabitation and the birth of a child, shall be declared void after the death of either of the parties.
Property Division
