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North Carolina is a hybrid state. Yes, you can obtain a no-fault divorce in North Carolina, but divorce is also an option if either spouse has committed marital misconduct or one spouse in "incurably insane" (see below).
North Carolina's no-fault divorce process is very simple.
First, you and your spouse will need to live "separate and apart" for one year. This means that you must be physically separated and not living together for one full, uninterrupted year. You must also communicate to your spouse that the reason for the separation is because you don't want to live together as a married couple anymore. If, during the one-year separation period, you and your spouse engage in isolated incidents of sexual relations, the one-year period won't be interrupted. But, if you resume normal marital activities and begin to live as a couple, it's possible that this will bring the one-year period to an end, and you'll have to start over.
The second requirement is that at least one of the spouses must live in North Carolina for the last six months before the divorce papers are filed.
Incurable insanity is another ground for divorce in North Carolina. It is not based on marital misconduct. It occurs when a spouse suffers from some sort of mental illness or impairment that results in confinement in a medical facility. "Confinement" doesn't have to be in a secure or locked facility; it just means that medical care occurs outside the marital home and prevents the spouses from living together.
A judge can grant a divorce on these grounds only if the illness has caused the spouses to live separate and apart for the three consecutive years before the divorce proceedings began. "Incurable insanity" can be proven when the spouse who is healthy and well obtains sworn statements from the superintendent of the medical facility and the treating physician which explain that the sick spouse is incurably insane.
If your spouse suffers from "incurable insanity," you may not obtain an absolute, no-fault divorce based on the one-year separation period. Being a sex addict might apply under this section but it will depend on the evidence and the documentation.
A "divorce from bed and board" is North Carolina's unique variation on fault-based divorce. A divorce from bed and board is not an absolute divorce. It is available if one or more of the following situations apply:
- a spouse abandons the family
- a spouse "maliciously" (with wrongful intent) forces the other spouse to leave
- a spouse commits "cruel or barbarous treatment" that endangers the life of the other
- a spouse treats the other spouse so badly and causes such indignities that the other spouse's life becomes intolerable
- a spouse becomes an excessive user of alcohol or drugs to the point that the other spouse's life becomes burdensome, or
- a spouse commits adultery.
In a divorce from bed and board situation, the parties go to court, and the injured spouse proves to the judge that the guilty spouse committed one of the above types of marital misconduct. Injured spouses must also prove to the judge that they didn’t provoke the guilty spouse into committing misconduct.
The judge then issues a judgment for divorce. After this special kind of judgment is issued, no one can force the parties to live together anymore. However, the spouses still remain in the marital relationship, and they can't marry someone else. The court order will decide some, but not all, of the marital issues.
A divorce from bed and board is a limited, or partial, kind of divorce. It is most common when one of the spouses is afraid of being accused of abandonment and insists on continuing to live together. In such cases, a divorce from bed and board has the practical effect of forcing the spouses to separate until they come back to court and are ready to obtain an absolute divorce.
No-fault divorce based on the one-year separation period is not an option to finalize a divorce from bed and board by ending the separation and making it absolute. This is because the court has already found misconduct.
If you have questions about pursuing a divorce in North Carolina, you should contact an experienced family law attorney in your area for advice.
So yes, you have options and you would be entitled to alimony and child support if you get custody of the minor child as well as a portion of the estate. Again, contact a family law attorney for your options.
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