Board Certified Family Law Specialist Matt Arnold answers the question: ” I’m considering separating from my spouse; what actions should I refrain from doing?”
The decision to get divorced is a tough one. When one spouse wants to get a divorce, that does not necessarily mean that the other spouse wants to end the marriage, too.
Does it mean that you cannot seek a divorce in North Carolina if your spouse does not want a divorce? The short answer is no. You can still initiate the divorce process even if your spouse disagrees about splitting up.
North Carolina is an absolute divorce state. That means that courts can ignore one spouse’s unwillingness to end a marriage if the other spouse initiated the divorce. Also, it does not matter why you decided to get a divorce in North Carolina.
The only requirement to get a divorce is to demonstrate that spouses have been separated for over a year and that their decision to end their marriage is final and permanent. Thus, a family law court in Charlotte or elsewhere in North Carolina will grant a divorce based on proof of the separation period rather than both spouses’ willingness to get a divorce.
Divorce From Bed and Board in North Carolina
While most spouses eventually come to terms with their spouse’s desire to get a divorce, some separations can be contentious. If that is the case, you can seek a “divorce from bed and board” to protect yourself for a year until you are eligible to file for divorce.
While a divorce from bed and board is called a “divorce,” it is more of a court-ordered legal separation that allows one spouse to start the separation period against the will of the other spouse.
However, the requesting spouse must prove that the other spouse committed some form of “marital misconduct” in order for the court to grant a divorce from bed and board. Eligible forms of marital misconduct include:
- Abandonment
- Malicious turning out of doors
- Alcohol or drug addiction
- Making a spouse’s life overly burdensome or intolerable
After granting a divorce from bed and board, the court can also issue a restraining order, alimony, child support and custody, and others.
What to Do if Your Spouse Evades Service
You may also encounter another problem after filing for divorce if your spouse does not want to end the marriage. That problem arises if your spouse evades service. North Carolina law requires the opposing spouse to be served with a petition for divorce. The failure to serve divorce papers means that the court will not have the authority to issue any enforceable orders affecting the spouse.
When a spouse evades service or for any other reason cannot be personally served, a court can authorize other methods of service, including substituted service or citation by publication. If the opposing spouse fails to respond to the petition, the petitioner can seek a default judgment because the opposing spouse essentially waived the right to defend themselves in court.
Discuss your legal options with a Charlotte divorce lawyer if your spouse does not want to end the marriage or evades service. Get a phone or video consultation by calling at (704) 370-2828 to speak with our detail-oriented and well-versed lawyers with offices in Charlotte, Lake Norman, and Monroe, please contact Arnold & Smith, PLLC today or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes two Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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