Area of Law:
Divorce is the legal dissolution of a marriage. In the United States, "no-fault" and "fault" are the two types of grounds, or justifications, for divorce. In some states, no-fault is the only suitable justification for divorce, even if fault grounds exist within the marriage. Other states allow the members of the couple to choose either a no-fault or a fault divorce.
The United States first adopted the notion of no-fault divorce in the late 1960's, and nearly of all states currently allow for some variation of it. A no-fault divorce is one in which the members do not legally fault, or blame, each other for the divorce. According to North Carolina law (see North Carolina General Statute § 50-6), a no-fault or “absolute” divorce may be obtained under two circumstances: a one year separation, and incurable insanity.
Under NCGL § 50-6, the one year separation does not have to be according to mutual agreement; only one spouse is required to have the intent to stop cohabitating with the other. Under present state law, isolated incidents of sexual intercourse do not stop the statutory one-year period from running, provided such incidents do not amount to a “resumption of marital relations.” The only proof required of this separation is the testimony of the plaintiff, no written statements or affidavits are necessary. One of the members has to have lived in North Carolina for at least six months.
The other way to get an absolute divorce in North Carolina is to meet the grounds of incurable insanity. To do this, the spouses are required to have lived apart for three years or more because of the condition of insanity. The condition of insanity must be proven by the testimony of medical or psychiatric experts. The insanity basis as grounds for divorce is not used very often.
Many states require a "cooling-off" period of separation for a specific length of time before no-fault divorce proceedings can commence. During this time, the members of the couple are required to live apart from one another with the intent that the separation will become permanent. The extent of the cooling-off period varies according to state law. In North Carolina, after the couple has lived apart for the required year, the divorce is typically granted about 60 days after filing, and the decree is made final immediately.
Some states also allow fault grounds for divorce. In North Carolina, the fault ground for divorce is the rarely used “divorce from bed and board.” According to NCGS § 50-7, the court may grant a fault divorce on the basis of divorce from bed and board if a spouse abandons his or her family, maliciously turns the other spouse “out of doors,” endangers the other spouse's life by cruel or barbaric treatment, makes the other spouse’s life intolerable, becomes an excessive drug or alcohol user, or commits adultery.
The North Carolina Bar Association has an online pamphlet, “Separation and Divorce,” which explains the divorce process in North Carolina. A chart comparing the grounds for divorce in all 50 states, including North Carolina, can be found at abanet.org.
*An example of a North Carolina Divorce Settlement Agreement can be seen on Free Legal Aid.