What Are the Requirements for a Complaint for Absolute Divorce?

In North Carolina, spouses that have lived continuously separate and apart from one another for at least 366 days and have been a resident of North Carolina for six months prior to the initiation of the action may file a Complaint for Absolute Divorce to seek the entry of a Divorce Judgment to dissolve a marriage. Notably, the words “separate and apart” require both a physical separation and an intention of at least one of the parties to cease matrimonial cohabitation.

To file for Divorce in North Carolina, one spouse must file a Complaint for Absolute Divorce initiating the lawsuit to request the Court to grant their Divorce. Under North Carolina law, specifically North Carolina General Statute § 50-8, the Complaint for Absolute Divorce must be signed before a notary public and must include the following:

• A statement that either party has been a resident of North Carolina for at least six months preceding the filing of the Complaint;
• A statement as to the existence of the marriage, including the date the parties married;
• An assertion that the parties have lived separate and apart for one year preceding the filing of the Complaint, including the date the parties separated; and
• The names and dates of birth for any minor children of the marriage, or if there were no children born to the marriage, a statement as to same.

A recent development, although not yet codified in North Carolina law, is the requirement by some North Carolina counties that the plaintiff also file an Affidavit of Military Status to make the Court aware of whether the defendant is a member of the United States military and on deployment.

There are other considerations when filing for Divorce. Wives may include a request to resume their maiden name in the Complaint for Divorce. Another important consideration is the interplay between Divorce, Alimony, and Equitable Distribution. If a party does not file their claims for Alimony and/or Equitable Distribution at the time of filing for Divorce or beforehand, those claims may be forever waived with the entry of a Judgment of Absolute Divorce. If Alimony and/or Equitable Distribution have not already been settled via a Separation Agreement or a Court Order, or if those claims have not already been asserted in another lawsuit, parties must consider whether they need to assert those claims at the time they file a Complaint for Absolute Divorce in order to preserve them.

To speak with someone about filing for Divorce and the considerations that go into that decision, please call us at (704) 810-1400 to schedule a consultation.

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