Must Both Spouses Go to Court for a North Carolina Divorce?
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Must Both Spouses Go to Court for a North Carolina Divorce?

by in DIVORCE

Some couples can’t seem to agree on anything, even whether or not to get divorced. If your husband or wife has moved on, do you need their help to finalize the divorce? Do both spouses need to go to court for a North Carolina divorce? Or can you complete the process on your own?

Who Can File for Divorce in North Carolina?

It may take two people to start a marriage, but it only takes one person to start a divorce. You don’t need your spouse’s consent to go to court and file a complaint for divorce. The only requirements are that you:

  • Live separately from your spouse for a year and a day
  • Live in North Carolina for at least 6 months
  • File the proper summons, complaint, and related documents
  • Pay the $225 filing fee

Learn more about when you can get a divorce in North Carolina.

What is Service of Process and Why Does it Matter?

That doesn’t mean you can get a divorce without your spouse knowing about it, though. After you file your complaint for divorce with the North Carolina family court, you must “serve” those documents on your spouse. Having your spouse “served” just means ensuring they get a copy of the papers you filed with the court. However, you must do this in a way that creates proof of service available to the court. You can’t just hand them the papers yourself. Instead, this is done one of two ways:

  • Personal service by a police sheriff
  • Sending the documents via certified mail, FedEx, or UPS, requiring a signature

If you choose service by mail, your divorce attorney will need to file proof that your spouse received the documents with the court.

Sometimes finding your spouse can become a problem. There are special procedures for serving documents across state lines, and for seeking “service by publication” if you truly do not know where your spouse is, or they are actively avoiding service. However, your attorney will need to show the steps you’ve taken to find them, or the steps they’ve taken to keep from being served.

What Happens if Your Spouse Won’t Go to Court for Your Divorce Hearing?

If your spouse lives out of state, or doesn’t want a divorce, they may refuse to go to court for your divorce hearing. However, this won’t stop the divorce from happening. North Carolina does not require your spouse to do anything for your divorce to be finalized. They are not required to:

  • File an answer
  • Sign the divorce judgment
  • Go to your court hearing

As long as you can provide proof they were properly served, your divorce can be entered without your spouse’s attendance, consent, or cooperation.

Why Should Both Spouses Be Involved in the Divorce?

So if only one spouse needs to be involved in a North Carolina divorce, why should the other spouse do anything at all? Most often, when a spouse files an answer or additional pleadings in a divorce action it is because they want to court to do more than enter a “simple divorce.”

Unlike in some other states, North Carolina divorce judges are not required to rule on issues of custody or property division unless one spouse specifically requests it. Sometimes, the spouse looking for a divorce may file what is informally called a “simple divorce” –asking only that the marriage to be terminated and nothing more. However, this simple divorce can leave ex-spouses:

If property issues aren’t raised in the divorce itself, both spouses waive the right to have the issue addressed by the court. Unless you and your spouse have already resolved these issues in a separation agreement, both parties may need to be involved in the divorce to make sure they receive a fair resolution to their custody, support, and property concerns.

At the Cox Law Firm, our experienced and compassionate divorce attorneys can help you get divorced with or without your spouse’s cooperation. We can work with you to negotiate a separation agreement and help you file and serve a complaint for  absolute divorce. If you are ready to get started, please get in touch with the Cox Law Firm by calling  704-243-9693 or visiting our  Contact Page.