Divorce can be a difficult and painful process for the parties involved. Making the decision to legally dissolve your marriage takes a lot of consideration and may result from any number of situations. In North Carolina, a couple files for a no fault divorce to terminate their marriage. No fault divorce is filed by a couple who have been living physically separate and apart for at least one year with the intent to permanently terminate their marriage.
For some couples, they become legally separated and begin to live apart while they reconsider their marriage, and some couples grow apart and agree to live separate lives. However, when it comes time to file for divorce, being able to locate your spouse is critical, in order to put him or her on notice that you are seeking to dissolve the marriage. Once the one-year legal separation period is satisfied, you must then file for divorce in your local county in order to dissolve the marriage. Legal separation is not enough to terminate a marriage, you must go through the official process outlined by your local jurisdiction, which includes serving your spouse with notice of your petition for dissolution of the marriage.
Filing for Divorce From Estranged Spouse
In North Carolina, in order to obtain a divorce from your spouse, you or your spouse must have lived in the state for six months prior to filing for divorce. This time limit is different from other states, with some states only requiring residency for one to three months prior to filing. Additionally, you and your spouse must live physically apart for one year at a minimum. North Carolina allows both no fault and what is referred to as incurable insanity, which requires a three year separation period.
When filing the paperwork for divorce in North Carolina, you must file a (1) complaint, (2) summons, and (3) Domestic Civil Action Cover Sheet. The complaint will state your request for divorce as well as various aspects about you and your spouse, including when you were married, when you legally separated, that you have been living apart so to satisfy the state’s legal separation requirements, whether there are children and if they are minors, any demand for alimony, and whether the wife seeks to resume her maiden name. The summons, along with the complaint, is what will be given to your spouse in order to notify him or her of the divorce and will also notify the spouse of their need to answer the petition within a specified period of time. The Domestic Civil Action Cover Sheet simply outlines the name and address of the parties involved, along with location and if they are represented by an attorney for their divorce.
While this may seem like a relatively straight forward process, it can become tricky for spouses who are estranged and do not know the last known address or location of their former spouse. Once the complaint and summons are filed with the court, the plaintiff must then “serve” the other spouse with the papers, which is usually done by certified mail or the local sheriff. One spouse may not, under any circumstances, be the one who serves their spouse with these papers. The court cannot hear your case if you are not able to notify your spouse, thus you must take a number of different measures in order to locate the spouse or show the court that you have made a good faith attempt to locate your spouse. The court may ask you to check their last known address, last known job, any of his or her family members, check through the internet and social media, the department of motor vehicles, as well as the in criminal court records to see whether they have recently been imprisoned.
Notice by Publication
If you are unable to locate your spouse for service to be given to them in person, you must then serve them by publication in a newspaper to put him or her on notice. You must ask the court for an order of notice by publication, meaning you must run your intent to divorce your spouse in a publication in the area of the spouse’s last known whereabouts for roughly three weeks, and then give the spouse 40 days to respond to the final notice. If you satisfy this requirement and the estranged spouse still does not respond, you can have an affidavit signed stating you attempted the notice and the court can then proceed to effectively dissolve your marriage.
Contact a Divorce Attorney Today
If you or someone you know has been legally separated from their spouse, who they are now estranged from and are seeking a divorce, we can help you take the necessary measures in order to move on with the next phase of your life. Please do not hesitate to call our dedicated Charlotte family law attorneys at The Offices of Remington & Dixon, PLLC or get in touch using our live chat feature on our website or the messaging center. We will help you fight for what you deserve.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.