In many states, couples who want to divorce have the option of seeking a divorce based on the conduct of the other spouse. In other words, if a spouse is caught cheating, the other spouse can seek a divorce on the basis of the other’s actions. Legally, this concept is referred to as “fault”.
In contrast, North Carolina is a “no-fault” state. This is because the only way that the vast majority of couples can obtain a divorce in North Carolina is through an “absolute divorce.” To obtain an absolute divorce, the only legal requirement is that a couple has to live separate and apart for a full year. Once that year and a day has passed, either party can file for a divorce. The only finding that the court must make is that a year has passed since the date of separation.
An absolute divorce has advantages over a fault divorce, in that: (1) there is no protracted legal battle over a spouse’s misconduct; (2) there is no requirement to file any legal separation pleadings prior to the absolute divorce petitions; and (3) either party can obtain an absolute divorce regardless of whether the other spouse wants a divorce. On the negative side, many couples find that a year is an incredibly long time to wait to begin divorce proceedings.
Exceptions to “No Fault”
While divorce and property division do not consider the factor of fault, there are a couple of notable areas that do, including:
- Divorce from bed and board. A divorce from bed and board is a court-ordered separation based on some misconduct of a spouse that has made another spouse’s life intolerable, such as abandonment, domestic violence, adultery, or substance abuse. In other words, in this unique situation, the court must make a finding of fault against one spouse to enter an order. These orders protect the injured spouse and dictate living arrangements, property division, support, and child custody.
- In determining the amount and duration of spousal support, a court may consider the factor of marital misconduct. This is a hard-fought legal finding, and North Carolina law even allows for a jury to decide whether marital misconduct occurred.
New Direction Family Law
New Direction Family Law provides legal counsel and representation for people seeking separations and divorces. This area of law is composed of many different parts, including separation agreements, property division, spousal support, child custody arrangements, parental visitation, and child support. These are all moving pieces to a big important puzzle, which we want to help you, piece together. Call New Direction Family Law at (919) 719-3470 to schedule an appointment, or contact us through our website.