North Carolina General Statutes related to Divorce based on
one-year’s separation.
§ 50-6. Divorce after
separation of one year on application of either party
Marriages may be dissolved
and the parties thereto divorced from the bonds of matrimony
on the application of either party, if and when the husband
and wife have lived separate and apart for one year, and the
plaintiff or defendant in the suit for divorce has resided
in the State for a period of six months. A divorce under
this section shall not be barred to either party by any
defense or plea based upon any provision of G.S. 50-7, a
plea of res judicata, or a plea of recrimination.
Notwithstanding the provisions of G.S. 50-11, or of the
common law, a divorce under this section shall not affect
the rights of a dependent spouse with respect to alimony
which have been asserted in the action or any other pending
action.
Whether there has been a
resumption of marital relations during the period of
separation shall be determined pursuant to G.S. 52-10.2.
Isolated incidents of sexual intercourse between the parties
shall not toll the statutory period required for divorce
predicated on separation of one year.
§ 50-8. Contents of
complaint; verification; venue and service in action by
nonresident; certain divorces validated
In all actions for divorce
the complaint shall be verified in accordance with the
provisions of Rule 11 of the Rules of Civil Procedure and
G.S. 1-148. The plaintiff shall set forth in his or her
complaint that the complainant or defendant has been a
resident of the State of North Carolina for at least six
months next preceding the filing of the complaint, and that
the facts set forth therein as grounds for divorce, except
in actions for divorce from bed and board, have existed to
his or her knowledge for at least six months prior to the
filing of the complaint: Provided, however, that if the
cause for divorce is one-year separation, then it shall not
be necessary to allege in the complaint that the grounds for
divorce have existed for at least six months prior to the
filing of the complaint; it being the purpose of this
proviso to permit a divorce after such separation of one
year without awaiting an additional six months for filing
the complaint: Provided, further, that if the complainant is
a nonresident of the State action shall be brought in the
county of the defendant's residence, and summons served upon
the defendant personally or service of summons accepted by
the defendant personally in the manner provided in G.S.
1A-1, Rule 4(j)(1). Notwithstanding any other provision of
this section, any suit or action for divorce heretofore
instituted by a nonresident of this State in which the
defendant was personally served with summons or in which the
defendant personally accepted service of the summons and the
case was tried and final judgment entered in a court of this
State in a county other than the county of the defendant's
residence, is hereby validated and declared to be legal and
proper, the same as if the suit or action for divorce had
been brought in the county of the defendant's residence.
In all divorce actions the
complaint shall set forth the name and age of any minor
child or children of the marriage, and in the event there
are no minor children of the marriage, the complaint shall
so state. In addition, when there are minor children of the
marriage, the complaint shall state the social security
number of the plaintiff and, if known, the social security
number of the defendant.
In all prior suits and
actions for divorce heretofore instituted and tried in the
courts of this State where the averments of fact required to
be contained in the affidavit heretofore required by this
section are or have been alleged and set forth in the
complaint in said suits or actions and said complaints have
been duly verified as required by Rule 11 of the Rules of
Civil Procedure, said allegations so contained in said
complaints shall be deemed to be, and are hereby made, a
substantial compliance as to the allegations heretofore
required by this section to be set forth in any affidavit;
and all such suits or actions for divorce, as well as the
judgments or decrees issued and entered as a result thereof,
are hereby validated and declared to be legal and proper
judgments and decrees of divorce.
In all suits and actions
for divorce heretofore instituted and tried in this State on
and subsequent to the 5th day of April, 1951, wherein the
statements, averments, or allegations in the verification to
the complaint in said suits or actions are not in accordance
with the provisions of Rule 11 of the Rules of Civil
Procedure and G.S. 1-148 or the requirements of this section
as to verification of complaint or the allegations,
statements or averments in the verification contain the
language that the facts set forth in the complaint are true
"to the best of affiant's knowledge and belief" instead of
the language "that the same is true to his (or her) own
knowledge" or similar variation in language, said
allegations, statements and averments in said verifications
as contained in or attached to said complaint shall be
deemed to be, and are hereby made, a substantial compliance
as to the allegations, averments or statements required by
this section to be set forth in any such verifications; and
all such suits or actions for divorce, as well as the
judgments or decrees issued and entered as a result thereof,
are hereby validated and declared to be legal and proper
judgments and decrees of divorce. The judgment of divorce
shall include, where there are minor children of the
parties, the social security numbers of the parties.
§ 50-9. Effect of answer of
summons by defendant
In all cases upon an action
for a divorce absolute, where judgment of divorce has
heretofore been granted and where the plaintiff has caused
to be served upon the defendant in person a legal summons,
whether by verified complaint or unverified complaint, and
such defendant answered such summons, and where the trial of
said action was duly and legally had in all other respects
and judgments rendered by a judge of the superior court upon
issues answered by a judge and jury, in accordance with law,
such judgments are hereby declared to have the same force
and effect as any judgment upon an action for divorce
otherwise had legally and regularly.
§ 50-10. Material facts
found by judge or jury in divorce or annulment proceedings;
when notice of trial not required; procedure same as
ordinary civil actions
(a) The material facts in
every complaint asking for a divorce or for an annulment
shall be deemed to be denied by the defendant, whether the
same shall be actually denied by pleading or not, and no
judgment shall be given in favor of the plaintiff in any
such complaint until such facts have been found by a judge
or jury.
(b) Nothing herein shall
require notice of trial to be given to a defendant who has
not made an appearance in the action.
(c) The determination of
whether there is to be a jury trial or a trial before the
judge without a jury shall be made in accordance with G.S.
1A-1, Rules 38 and 39.
(d) The provisions of G.S.
1A-1, Rule 56, shall be applicable to actions for absolute
divorce pursuant to G.S. 50-6, for the purpose of
determining whether any genuine issue of material fact
remains for trial by jury, but in the event the court
determines that no genuine issue of material fact remains
for trial by jury, the court must find the facts as provided
herein. The court may enter a judgment of absolute divorce
pursuant to the procedures set forth in G.S. 1A-1, Rule 56,
finding all requisite facts from nontestimonial evidence
presented by affidavit, verified motion or other verified
pleading.
§ 50-11. Effects of
absolute divorce
(a) After a judgment of
divorce from the bonds of matrimony, all rights arising out
of the marriage shall cease and determine except as
hereinafter set out, and either party may marry again
without restriction arising from the dissolved marriage.
(b) No judgment of divorce
shall render illegitimate any child in esse, or begotten of
the body of the wife during coverture.
(c) A divorce obtained
pursuant to G.S. 50-5.1 or G.S. 50-6 shall not affect the
rights of either spouse with respect to any action for
alimony or postseparation support pending at the time the
judgment for divorce is granted. Furthermore, a judgment of
absolute divorce shall not impair or destroy the right of a
spouse to receive alimony or postseparation support or
affect any other rights provided for such spouse under any
judgment or decree of a court rendered before or at the time
of the judgment of absolute divorce.
(d) A divorce obtained
outside the State in an action in which jurisdiction over
the person of the dependent spouse was not obtained shall
not impair or destroy the right of the dependent spouse to
alimony as provided by the laws of this State.
(e) An absolute divorce
obtained within this State shall destroy the right of a
spouse to equitable distribution under G.S. 50-20 unless the
right is asserted prior to judgment of absolute divorce;
except, the defendant may bring an action or file a motion
in the cause for equitable distribution within six months
from the date of the judgment in such a case if service of
process upon the defendant was by publication pursuant to
G.S. 1A-1, Rule 4 and the defendant failed to appear in the
action for divorce.
(f) An absolute divorce by
a court that lacked personal jurisdiction over the absent
spouse or lacked jurisdiction to dispose of the property
shall not destroy the right of a spouse to equitable
distribution under G.S. 50-20 if an action or motion in the
cause is filed within six months after the judgment of
divorce is entered. The validity of such divorce may be
attacked in the action for equitable distribution.
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