The decision to end a marriage is not always mutual. This should not come as a surprise—the relational dynamics and events that lead to a break up are not always clean, peaceful, or smooth. However, the fact that one spouse is against divorce does not prevent the other from ending their marriage.
North Carolina is an absolute divorce state, which means our courts do not look at the desires of the spouses or the reasons for the dissolution of their relationship. Instead, if one spouse can demonstrate that he or she has been separated from the other spouse for at least one year and that he or she had the intent to remain permanently separate and apart from the other spouse during that year-long separation, then a court must grant the divorce. In other words, a court is concerned that a couple has lived “separate and apart” in separate residences for an uninterrupted year, and not whether both spouses desire a divorce.
Notably, in truly contentious separations, it may be necessary for a spouse to seek a “Divorce from Bed and Board” to protect him or herself until eligible for an absolute divorce. A divorce from bed and board is not a divorce at all; it’s essentially a court-ordered legal separation that a victim spouse can seek against the will of the other spouse. The spouse who requests a divorce from bed and board must prove that the other spouse committed marital misconduct for a judge to order him or her out of the residence. Marital misconduct includes circumstances of (1) abandonment; (2) “malicious turning out of doors;” (3) making the other spouse’s life overly burdensome or intolerable; and (4) alcohol or drug addiction. These orders can include restraining orders, protective orders, property orders, alimony, child custody, and child support.
When a Spouse Has Disappeared or Evades Service
Despite that North Carolina is an absolute divorce state, there are still procedures that must be adhered to so that each spouse’s fundamental rights are protected. One of these is the requirement that an opposing party is “served” with the lawsuit, so that he or she is aware of what he or she is facing legally. The failure to obtain proper service of process means that a court lacks the authority (or “jurisdiction”) to enter enforceable orders affecting that person.
Sadly, we have encountered situations where spouses cannot be served in person with a lawsuit. The reasons for this are all over the place, from the couple drifting apart to the extent that a spouse cannot be located to a spouse avoiding service because he or she doesn’t want a divorce. If a spouse cannot be personally served after diligent efforts, then there are other methods of service that a court can authorize, such as substituted service or citation by publication.
Notably, if a spouse is served through one of the legally permissible methods, yet fails to respond to the lawsuit, then the spouse seeking the divorce can see a “default” judgment. Essentially, if a spouse ignores a lawsuit, then he or she waives the right to defend himself or herself from a judgment.
Contact New Direction Family Law
New Direction Family Law is a law firm that helps men and women resolve all of the issues surrounding a divorce including separation agreements, temporary orders, property division, spousal support, child custody, and child support. Our attorneys are experienced, proven professionals who will listen to you and passionately advocate for your legal interests. If you are interested in obtaining a divorce, let us help you. Contact our team at (919) 719-3470 to schedule an appointment or visit us online through our website.