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Fault and No-Fault Divorces

North Carolina is a “no fault” divorce state, like most states in the U.S. Neither party has to prove marital fault (for example, habitual drunkenness or addiction, adultery, domestic violence, cruel and abusive behavior or economic fault). After a mandatory one-year separation and the processing of paperwork, you can get a divorce. “No-fault” grounds are the most straightforward and easiest to prove, because neither party has to prove marital fault in order to obtain the divorce.

There are two types of divorce, however, and important differences between the two types of divorce exist:

  • No-fault divorce: A marital termination proceeding where the divorce is granted without either party being required to show fault, and neither spouse blames the other for the breakdown of the marriage. Both spouses agree that “irreconcilable differences” have arisen. Also, in no-fault states like North Carolina, either party may obtain a divorce, even if the other spouse does not consent to the divorce. As long as you have been separated at least a year and your paperwork is correctly processed through the judicial system, you can get a divorce.
  • Fault-based divorce: This is a marital termination proceeding that requires you to give a legal reason in order to get a divorce. Typically, a fault-based divorce is pursued if the couple cannot reach a satisfactory settlement about the division of property, the award of support, or custody of the children, and one party wants the court to consider the conduct of the other party when deciding the issue. Some of the more common types of fault that may be alleged include adultery, mental illness, conviction of a felony, abandonment, drug abuse, cruelty, impotency and bigamy. Some courts consider fault to determine the amount of spousal support owed by one spouse to the other.

In this state, a one-year separation is required before filing for divorce. However, in North Carolina there really is no such thing as “legal separation”. Nuances like this are why divorce planning without the assistance of a skilled family law practitioner almost always results in costly mistakes. It is wise to consult with an attorney when drafting a separation agreement, because once both parties sign it, it is considered a binding contract in the eyes of the law, and could be used to formalize the division of property and obtain orders for custody, visitation and spousal support.

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