By Ava Jennette
Understanding the process of absolute divorce in North Carolina is essential if you’re considering ending your marriage. While the process can seem straightforward on the surface, there are critical legal steps and timing requirements that can significantly impact your rights, especially when it comes to property division and alimony.
In Episode 68 of New Direction Family Law’s The Ex-It Strategy Podcast, attorneys Sarah Hink and Ava Jennette break down the key aspects of absolute divorce, including how to file, what to expect, and common mistakes to avoid.
This guide summarizes the most important takeaways from that conversation so you can better understand what lies ahead.
What Is Absolute Divorce in North Carolina?
An absolute divorce in North Carolina is the legal termination of a marriage. It is considered a “no-fault” divorce, meaning neither spouse has to prove wrongdoing, only that the legal requirements have been met.
The most important requirement is separation. Before filing for divorce, spouses must live separately and apart for one year and one day. This means physically residing in different homes, not just separate rooms within the same residence.
This waiting period is strictly enforced, and attempting to bypass it can create serious legal complications.
You can review additional information about divorce requirements through the
North Carolina Judicial Branch.
Why the Separation Period Matters
The one-year separation requirement is a foundational legal threshold.
Even if both parties agree to divorce earlier, filing prematurely can result in dismissing the case or challenging it later. In some situations, it could even create complications with future marriages.
Determining the correct date of separation can also be more complex than it seems. For example, couples who have had periods of living apart during the marriage due to travel, work, or temporary conflict may face disputes about when the official separation began.
Because of this, working with an experienced attorney can help ensure you establish a proper timeline before filing.
What Happens Before You File for Divorce in NC?
One of the most critical points the attorneys emphasize in the podcast is this: you must address your financial claims before finalizing your divorce.
In North Carolina, if you finalize your divorce without filing claims for equitable distribution or alimony, you may permanently lose your right to pursue them.
This is one of the most common and costly mistakes people make during the divorce process. Once someone enters the divorce judgment, those claims are no longer available.
To better understand how property division works, you can also review our blog post on this topic.
The Divorce Filing Process in NC
Filing for absolute divorce requires initiating a lawsuit by submitting a complaint to the court. While the document itself may seem straightforward, it must include specific legal language and accurate details, including the correct date of separation.
Once filed, the complaint must be properly served on the other spouse. This step is often where delays occur.
Service issues may arise if:
- The other party cannot be located
- They actively avoid being served
- They have moved out of state or internationally
These challenges can extend the timeline beyond typical expectations.
In a straightforward case with no disputes or delays, the process from filing to final divorce judgment generally takes about two to three months.
What If Your Spouse Doesn’t Respond?
One of the advantages of North Carolina’s no-fault divorce system is that your spouse does not have to agree to the divorce.
If the divorce is served to other party and they do not respond, you can still move forward with the process. In many cases, this actually simplifies the timeline.
However, if your spouse contests certain facts, such as the date of separation, you may need to appear in court to provide testimony and resolve those issues.
Do You Have to Go to Court?
Whether you need to appear in court depends on your situation.
If you are represented by an attorney and the case is uncontested, your attorney can often handle the process on your behalf without requiring you to attend the hearing.
However, for anyone handling their divorce without legal representation, courts require that individual to appear in court and ensure they are meeting all procedural requirements.
Even in otherwise simple cases, small procedural errors, like improper service or incorrect documentation, can delay or derail the process.
Situations That Can Complicate Divorce
While many absolute divorce cases are straightforward, certain circumstances can add complexity.
Military families often face unique legal challenges during divorce, especially when deployment or an out-of-state assignment affects custody, support, or jurisdiction. Similarly, cases involving competency issues or significant medical concerns may require additional legal steps.
Each of these scenarios highlights the importance of having experienced legal guidance when navigating the process.
Considering filing for divorce in North Carolina? Our team at New Direction Family Law can help you navigate the process and avoid costly mistakes with nearly 100 years of combined experience. Schedule a consultation today by calling (919) 719-3470 or completing our contact form.
Why Legal Guidance Matters
Absolute divorce may seem like a procedural step, but it carries significant legal consequences.
From establishing the correct separation date to preserving your rights to property division and support, be sure to handle each step carefully.
At New Direction Family Law, our North Carolina Board Certified Family Law Specialists and experienced attorneys guide clients from initial separation planning through final divorce, helping them address every critical legal issue along the way.
If you’re considering an absolute divorce in North Carolina, our team is here to help you understand your options and protect your rights every step of the way.
Contact New Direction Family Law today.
Author: Ava Jennette
Frequently Asked Questions
1. Can I get divorced if my spouse doesn’t agree?
Yes. North Carolina is a no-fault divorce state, which means one spouse cannot prevent the other from obtaining an absolute divorce if the legal requirements are met. Even if your spouse does not respond to the divorce complaint, the case may still proceed after proper service and the applicable waiting periods.
2. Why is the date of separation so important?
The date of separation determines when you become eligible to file for an absolute divorce and may also affect certain financial claims. If spouses disagree about the separation date, the court may require additional evidence or testimony before granting the divorce.
3. Do I have to go to court to get an absolute divorce?
Whether you need to appear in court depends on your situation. If you are represented by an attorney and the case is uncontested, your attorney can often handle the process on your behalf without requiring you to attend the hearing. However, individuals handling their divorce without legal representation are typically required to appear in court and ensure all procedural requirements are met.
4. Should I hire a family law attorney for an absolute divorce?
While some uncontested divorces may seem straightforward, even small procedural mistakes can delay the process or affect important legal rights. An experienced family law attorney can help ensure you prepare the necessary documents are correctly, meet all deadlines, and address issues such as property division and alimony before finalizing the divorce.
The Ex-It Strategy Podcast | Episode 68
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Podcast Episode Hosts: Sarah Hink and Ava Jennette
Sarah J. Hink: Hi, everyone listening. It’s Sarah Hink, one of the Attorneys & Managing Partners of New Direction Family Law. Elizabeth Stephenson is not with us in the studio today. She’s actually in a three or four day long trial in Durham. So she’s busy, she’s working, she’s doing great, taking numbers.
Instead we have attorney Ava Jennette with us, who is also an attorney at New Direction Family Law. We are gonna talk about absolute divorce in this episode and the filing and the general process and how it can be one of the easiest things and the most complicated things.
Sarah J. Hink: Hi, everyone listening. It’s Sarah Hink, one of the Attorneys & Managing Partners of New Direction Family Law. Elizabeth Stephenson is not with us in the studio today. She’s actually in a three or four day long trial in Durham. So she’s busy, she’s working, she’s doing great, taking numbers.
Instead we have attorney Ava Jennette with us, who is also an attorney at New Direction Family Law. We are gonna talk about absolute divorce in this episode and the filing and the general process and how it can be one of the easiest things and the most complicated things.
So, Ava, tell us a little bit about yourself and then get us started on filing for a divorce.
Ava K. Jennette: Yeah. Well thanks for having me Sarah. I am excited about this! As Sarah said, my name’s Ava. I’ve been practicing family law for about two years now. Um, and I really like it thus far.
It’s very interesting and we have lots of interesting and complicated stuff like absolute divorces. Mm-hmm . So yeah, I can definitely talk a little bit about that ’cause I do most of them at our firm. Yeah.
Sarah J. Hink: You handle most absolute divorces at our firm. And the reason for that is because they are very systematic and they can be or they should be.
As far as the process of filing, when can you file for divorce in North Carolina?
Ava K. Jennette: So in North Carolina you have to be physically separated. That means living in different residences for a year and a day before you can file for divorce. A lot of people are kind of shocked by how long of a period that is, but that’s what you need to do.
Sarah J. Hink: Okay? So living in a different room in the house, that doesn’t count. What if you and your spouse/partner agree to file earlier than that?
Ava K. Jennette: I would not recommend that. Even if you guys are getting along well and you agree on this, there’s nothing to stop your spouse in the future from coming back and telling the court that you lied.
There are all sorts of consequences like if the divorce gets thrown out in the future and it’s really not something that you wanna mess around with.
Sarah J. Hink: Yeah. So if you get married in the future and then your other divorce gets set aside, then you can get hit with bigamy.
Ava K. Jennette: Yeah, we don’t like bigamy here. That’s, you know, also a criminal statute, so you could be charged criminally for that.
So make sure that you go by the process that you wait 12 months and a day, or 366 days to be exact from when you separate, when you move out of a house or when your spouse moves out, and of course talk to an attorney about that too. It can be a slippery slope as far as what your actual date separation is.
It’s not always, um, as cut and dry in some relationships. Yeah. We see that a lot.
Sarah J. Hink: I’ve seen people where it’s normal for them to spend a long time, like a large period of time away from each other during the marriage.
Traveling for work or going to visit family back in a different country. And that was kind of. That was what would happen in the relationship. So it wasn’t unique to that time period. They would leave to go back to India for a month to visit their family and then come back and reside at the marital residence and then leave again.
They wanna go backtrack to when they first left the first time. It’s, you know, trying to figure out exactly what happened in that scenario for sure. So it can be complicated.
Ava K. Jennette: Yes, definitely. And unfortunately too, sometimes folks are like, I’d say kind of off and on again, that they honestly have a hard time remembering even what their official move out was.
So, you know, if you talk to an attorney, we can help you figure out what that is. Yeah.
So it’s been 366 days for somebody. Is there anything that they need to go through as a checklist otherwise before they file for divorce that they need to do?
Ava K. Jennette: Yes. So before you get divorced, you definitely need to go through your checklist of your property issues and alimony because once you are divorced in North Carolina, you can’t file for alimony anymore. And the property issues, we call it equitable distribution here in North Carolina, can get very complicated.
Sarah J. Hink: Yeah.
Ava K. Jennette: Which we’ve seen happen.
Sarah J. Hink: It’s just best to assume that if you have a divorce judgment entered before anyone files a claim for those issues of division of property or alimony, that your chance to file those are kind of out the window.
Yeah. There’s some small, you know, incidents where you can maybe set aside the divorce or go back in and refile, but for the most part, you lose your right to go after alimony or equitable distribution if the divorce judgment goes through before you file a claim for those. So definitely make sure you do that.
Have your separation agreements done and signed by the time you file for divorce, or if you’re gonna file in court for divorce for absolute divorce, make sure that you’re filing for those other claims as well.
Ava K. Jennette: That is correct. Okay.
Sarah J. Hink: So we file for divorce. What’s the process of that?
Ava K. Jennette: So the process is you unfortunately do have to file a lawsuit.
It doesn’t have to be, you know, scary or like, I hate you to your ex, but you do have to actually file a complaint in court. And that document is fairly simple once you’ve handled, you know, all the other property stuff like we talked about, but you essentially lay out that you’ve been separated for a year and a day.
There’s some other things in there you file with the court and then the whole process begins. I’d say the whole thing takes on average about two to three months.
Ava K. Jennette: That’s true. Yeah.
Sarah J. Hink: With no hiccups along the way.
Yeah. And some counties out there do have their own divorce packets. So if you’re listening in a different county that’s not near us, you know, talk to an attorney out there. Also look at the Clerk of court’s websites. Mm-hmm. They have some like packets to do it yourselves.
But there are some issues with doing it yourself and that runs into a lot of times the problem with service. Yes.
Sarah J. Hink: So what are some issues with service? The divorce complaint?
Ava K. Jennette: So, some issues with service can be number one, you may not know where your ex is, you know, it’s been a year and a day, and you may have lost track of them.
Um, so that can be an issue. They could not want to get divorced, and dodge service and that can be a huge pain in the butt.
Sarah J. Hink: They might think it’s like child support that you’re trying to serve on them. That’s true. Yeah. And try to get outta dodge that way.
And some people wait longer than a year to file for divorce. Absolutely. I’ve seen people wait 10 years and it’s like, well, how do we find them now? That’s really complicated.
Ava K. Jennette: Yeah, for sure. Um, especially if they’ve moved outta state or out of the country. Yeah. Sometimes too, you can even just have basic problems if the sheriff comes and they’re at work or, you know, that sort of thing.
So, um, service can cause some issues and that can make the process take a lot longer than you’re anticipating. Yeah.
Sarah J. Hink: That can take longer than the two to three month time period. There’s a few allegations that you put in the divorce complaint, but they’re very important allegations to allege.
So that’s why it’s important for people to use an attorney to make sure they have everything correct, the correct date of separation, the correct language about residing apart and if one person wants to be divorced. Right? And anything else that needs to go in there. So you file that, you get it served.
Mm-hmm . And so procedurally what can happen next?
Ava K. Jennette: So procedurally, what can happen next is that your ex could file something called an answer, and it could be just where they answer and say, yes, all this is correct, let’s get divorced. Or they could come back and say, you know, I’m filing for alimony, or I’m filing for equitable distribution.
Which again, hopefully you’ve gotten those issues straightened out before this. But, that could be something that happens. They could also say that you haven’t been separated for as long as you have. I think those are the biggest. Yeah.
Sarah J. Hink: Or they just don’t respond at all. Which is your best case scenario. That’s generally what we want. Yeah. Just no response or at least alleged, you know, saying that everything in the allegations was true. Right. And if that’s the case, if they say everything is true in the complaint or they just don’t respond and there’s no other claims filed, does that make the case easier?
Like what happens next after that?
Ava K. Jennette: It does. So if they don’t do anything or they say, yeah, that’s all good to go, then you essentially have to either wait 30 days from filing if they don’t answer, or I guess if they answer, you could go ahead and do your motion for summary judgment at that point. Which is essentially where you’re asking the court to grant your divorce.
It’s a little bit more complicated than that, but that’s the basics. Then you have to wait 10 days before you can get a hearing ’cause you have to give notice to the other party, which is a constitutional issue. But, then generally, so let’s say 30 days plus 10, you’ve got about 40-60 days later, you’re hopefully going to court and getting your divorce at that point.
Sarah J. Hink: Yeah. So in Wake County, they do like pro se divorces, which is when someone does it without an attorney. And in those scenarios, the person that files needs to go to court, needs to be in front of the judge and ask for the divorce. Correct. Yep.
Ava K. Jennette: That is all right. Yeah.
Sarah J. Hink: But if they use you or another attorney, is there a different process? Do they need to go to court? If it’s a simple one like that?
Ava K. Jennette: Yeah. So if they have an attorney, they don’t need to go to court. I typically tell people, you don’t need to be there.
Your ex doesn’t need to be there if they don’t wanna be. We’ll handle it for you. But if you don’t have an attorney, you do need to be prepared to actually go to a courtroom and do it yourself.
Sarah J. Hink: Yeah. And have everything correct. Make sure that you filed everything correctly.
Make sure that there’s been an indication of service in the court file. Right. You know, you can’t just say to the judge like, yeah, I served it. There needs to be an affidavit of service in the court file, either from the sheriff or however else you serve them.
In Wake County, we still do our divorces on Friday. Right? Yep,
Ava K. Jennette: That’s right.
Sarah J. Hink: Say party Friday, get a divorce, go party afterwards.
Ava K. Jennette: Exactly. . Yeah.
Sarah J. Hink: And it can be a fun time when you do need to go in person. So, are there instances when you do have an attorney and you still might have to go testify at a divorce hearing?
Ava K. Jennette: Yes. So typically this happens when you’re contesting the date separation. So let’s say, you know, you say you were separated on New Year’s Day, but your ex says, no, we separated at Christmas. If, even if it’s been over a year and a day, the court typically still wants to have a firm date on that.
That can also affect property issues and all sorts of stuff. If that is going to be a problem, sometimes you have to go to court and testify about why you think it’s the state and he thinks it’s the state. Yeah.
Sarah J. Hink: The simplest facts can really mess up the case. Yes. If parties do not agree. A lot of times people will say to me, oh, you know, I don’t, I think he’ll sign off on the divorce, but they don’t really have to sign off on the divorce. You can get a divorce even if your ex doesn’t want to be divorced. Correct.
Ava K. Jennette: Right. And I get that question a lot too. Yeah. They’re like, well, he’s not gonna want this.
And it really doesn’t matter here as long as they’re not gonna dodge service. Or you know where to find him. In North Carolina, it’s a no fault state and really all you need to get divorced is being separated with the intent to remain separate and apart for a year and a day.
Sarah J. Hink: Yeah.
No-fault divorce is huge and I don’t know that all states have it. I don’t think so.
Ava K. Jennette: I don’t think so either. But I don’t know.
Sarah J. Hink: I know in one of those very southern states, Louisiana, maybe more southern than North Carolina, they require counseling before you can file for divorce.
And there’s, wow. You know, all the rules are different in every state about divorce. The waiting period is different. But you have to prove or allege, um, you know, if you’re in those real southern states, you might have to go to bible class. I think it’s like in Louisiana, I have to look that up later just to, you know, jog my memory about that from law school.
But in North Carolina it’s the year and a day and no fault. So it doesn’t matter why you’re getting divorced, why you wanna divorce, it doesn’t matter to the court. At least that’s the way it is now. And hopefully it should stay that way. Yes. Um, and there are some interesting scenarios about divorce when you are divorcing someone that might be incompetent.
There’s actually a three year waiting period, I believe, correct.
Ava K. Jennette: I believe so I have not luckily have not come up on this issue yet. Yeah. I don’t know if you’ve had a case like that.
Sarah J. Hink: I had one case when I was probably one or two years outta practice and that just, you know, threw me for a loop.
I was like, okay, you’re claiming that he’s incompetent and can’t file for divorce yet. It was very complicated with spousal support claims and getting medical doctors involved to prove competency.
But there is a little niche area where you have to wait longer than a year. So if that’s the case, then definitely speak to an attorney about your divorce and I’m sure there’s good reasons for that. If you know a spouse is incompetent, make sure that they have an attorney, a guard ad litem to represent them if they do not want the divorce or what the intent of the divorce is.
But I’ve seen some people wanna get a divorce to kinda like separate finances when there might be a debtor involved or medical issues involved where they wanna keep their relationship, they love their spouse, but there might be medical debtors out there and your spouse might have like cancer or something like that, and concerned about the debtors coming after you want the divorce.
So that’s a very complicated issue because under the law you can’t live together anymore and you’re supposed to hold yourself out to be separated from your friends and family. Um, so if you’re thinking about that and you’re listening out there, speak to an attorney about other ways to protect yourself if it, that’s the issue.
Sarah J. Hink: I’m trying to think of any other unique issues with divorces that I’ve seen.
Ava K. Jennette: The one I could think of is military service. I haven’t dealt with a ton of these, but one of our coworkers, Ashley, deals with a lot of military divorces. So when they do come up, it’s typically her folks.
But, um, in the military, if your spouse is active duty, they have certain extra protections in lawsuits. So, if your soon to be ex-spouse is on active duty, I would definitely talk to an attorney about whatever, um, issues could pop up there. Yeah.
Sarah J. Hink: You’re waiting, my period might be a little bit longer just due to where they are in the world and, um, absolutely.
If they’re deployed or not, or where they’re stationed. So that’s a good point to make as well. Otherwise, if you went out and it’s been 366 days and all the other issues are taken care of, you can get out, correct? That’s correct. All right.
