Can I get a fault-based divorce in North Carolina?

No. Unlike many other states, North Carolina does not have a fault-based divorce. In the vast majority of cases, you need only decide that your marriage is irretrievably broken and then be physically separated from your spouse for a period of at least one consecutive year. A fault is not a consideration.

There is one exception to the no-fault rule

The only exception is a divorce based on incurable insanity. If you choose to file under this ground instead of getting a standard, no-fault divorce, you will need to prove that you have been living apart from your spouse for at least three years due to their mental health condition and that your spouse has either been institutionalized or found “insane” by a judge at least three years ago. You must also prove, by the testimony of two specialty doctors, that your spouse is “incurably insane.”

No-fault divorce is the norm

If you are seeking a standard, no-fault divorce in North Carolina, here are the legal requirements:

• You or your spouse must have lived in North Carolina for at least six months before you file
• You must be in a legal marriage
• You and your spouse have lived in separate residences, with at least one of you intending that to be permanent, for a year and a day

The issues of divorce and fault-based spousal support

Once you have filed for divorce, you will have to:

• Determine how to equitably divide your property and debts
• Set up a plan for legal and physical custody of your children
• Calculate child support and, in some instances, spousal support (alimony)

Although you may be convinced that your divorcing spouse is at fault for the marriage’s collapse, fault will generally not affect the outcome of these things.

The exception is that “marital misconduct” by one spouse can sometimes affect spousal support. For example, if you cheated on your spouse before you were separated, you are generally barred from receiving alimony if you are considered the “dependent spouse.” However, if your spouse cheated and you did not, in most cases you will receive alimony as a dependent spouse. If both spouses cheated, the judge has the discretion to award alimony.

Cheating is not the only form of “marital misconduct.” The term also includes things like cruel treatment, financial misconduct, drug or alcohol abuse, abandonment or imprisonment.

Child support is generally calculated based on North Carolina’s child support guidelines.

If you and your divorcing spouse cannot agree on an issue in your divorce, you will generally have to take it to court for a judge to decide.

At each point in your divorce, a caring, compassionate attorney can be of real assistance in helping you comply with the law and resolve the issues in your divorce.