It is not uncommon by any means for one spouse to be ready to move on, while the other is not. Divorce tends to work that way – one person wants out while the other person is left reeling in the wake, holding out hope for reconciliation. Sometimes a spouse has moved on with someone else, other times they have simply embraced that there are fundamental differences. Whatever the reason, more often than not it seems that one spouse is more eager to move forward with divorce than the other.
So what do you do if your spouse wants to get divorced and you don’t? Is there any way to slow this process down? In order to answer this question, we’ll need to start by talking about the grounds for divorce in North Carolina.
Grounds for Divorce
Fault v. No Fault
In states that recognize fault-based divorce, a spouse can seek a divorce on grounds that the other spouse’s fault led to the dissolution of the marriage. Common examples of fault are:
- Adultery
- Abandonment
- Incarceration
- Impotency
- Abuse
North Carolina is a ‘no fault’ divorce state. What that means is that fault simply does not matter in North Carolina when it comes to absolute divorce. Fault might make an impact in other areas of your case, such as alimony, but it has no bearing on a spouse’s ability to file for absolute divorce. An absolute divorce in North Carolina can be granted after a one-year separate period or on grounds that the other spouse suffers from incurable insanity.
One Year Separation Period
The most common way people obtain a divorce judgment in North Carolina is based on a showing of one year of separation. If you want to move forward seeking a divorce based on this, you’ll need to prove several things first. We discuss these grounds in greater detail in our article Absolute Divorce: The Details, but the following overview will provide some insight into the requirements to file for divorce based on a one-year separation.
Aside from alleging that there was in fact a marriage, you’ll need to show that either spouse has lived in North Carolina for at least six months immediately preceding the filing of the divorce action. Next, you must allege that you and your spouse have lived separate and apart for at least one calendar year. Living in separate bedrooms or parts of the home is not enough; both parties must physically reside at different addresses to satisfy this requirement. And finally, you must allege that the parties intend to live separate and apart from here on out.
Incurable Insanity
The only other way to obtain an absolute divorce is to by showing that one spouse suffers from an incurable insanity, and that the parties have lived separate and apart for three years because of the insanity.
Contesting the Divorce: Defenses
As you can see, proving grounds to obtain an absolute divorce is not all that difficult; and often one spouse can prove the grounds without cooperation from the other spouse. That being said, the defendant spouse can raise certain defenses.
The burden is on the Plaintiff to satisfy the necessary grounds, namely that the parties were married, that North Carolina jurisdiction is proper, that that the parties have been separated for a year, and that the parties intend to remain separated. The burden is then on the defendant to object to any of those allegations. In practice, however, so long as the spouse moving for divorce can prove the following elements, there is almost no way to prevent the judge from granting the divorce:
- That the parties were married;
- That either spouse lived in North Carolina for six months before the complaint was filed, and;
- That the parties have been separated for a year.
To get a full understanding of why it is difficult to contest an action for absolute divorce, let’s walk through them one by one.
Marriage
Let’s be honest – lack of marriage is understandably a difficult thing to object to. Production of a marriage license will be enough to satisfy a judge. And, in North Carolina, lack of a marriage license is not enough to invalidate a marriage. The only truly void marriages in North Carolina are bigamous marriages.
Residence
If a spouse tries to prove that jurisdiction is improper because neither party lived in North Carolina for six months preceding the action, this can be cured by simply showing proof of residency; bills from six months ago showing a mailing address indicating that a party resided in North Carolina will suffice. The date a North Carolina Drivers License was obtained will suffice. A lease agreement will suffice. There are plenty of ways a party can prove that he or she resided in North Carolina.
If the moving party’s residency was not in North Carolina for 6 months prior to the divorce filing, and he or she is using the defendant spouse’s residence in North Carolina to establish that North Carolina has jurisdiction, it can be harder to prove that jurisdiction is proper.
Separation
The most common defense to a complaint for absolute divorce is that the parties have not been separated for a full calendar year. This situation arises when one spouse contends the date of separation is, for example, May 15, 2014 while the other spouse claims that separation didn’t occur until August 15, 2014. If a spouse tries to file for divorce on May 16, 2016, the other spouse can dispute that date of separation. This raises a genuine issue of material fact that may prevent a judge from granting the divorce.
But, in reality, this is nothing time can’t cure; raising this defense simply delays the inevitable. The moving party will just wait until August 16, 2016 to bring a subsequent action, as such the defect will be cured and the judge will grant the divorce.
Even though this defense does not work in terms of preventing a party from ever being able to obtain a divorce judgment, there still may be some strategic reasons why a party will want to raise this defense. Perhaps you may think that the extra few months will result in your spouse’s change of heart.
Or more commonly, the date of separation has an impact on other aspects of your case. Perhaps there is an alleged extramarital affair that could affect an alimony award, the party who had the affair may claim that the date of separation was earlier than it actually was. The party who did not have the affair will want to prove that the date of separation was later, to support his or her evidence that the affair took place during the marriage. Similarly, it can impact an equitable distribution case. Imagine a scenario where a spouse starts a business that is immediately profitable in February of 2015. He contends that the date of separation is in January and, as such, the business is his separate property. His wife, on the other hand, contends that the date of separation was in March so that she can argue that the business is a marital asset.
While obtaining a judgment for absolute divorce is a separate action than an alimony or equitable distribution action, it can be costly to submit to a date of separation in your divorce proceeding and simultaneously refute that date of separation for purposes of alimony.
Intent
Stating that you did not intend your separation to be permanent will not be a viable defense. So long as the spouse moving for divorce can prove that there was a marriage, that jurisdiction is proper, and that a one-year separation period has occurred, the judge will be inclined to grant the divorce. Judges will not refuse to sign a divorce judgment on the grounds that one of the spouses simply does not want to get divorced.
Procedure
So if you do want to contest the divorce, how do you do it? You need to raise your defense in your answer to the divorce complaint. Should you fail to raise your defense, and the moving party complies with all of the requirements to obtain an absolute divorce, the judge may not be inclined to entertain your attempt to delay divorce proceedings.
The Takeaway
While there are elements to divorce that can be contested by way of raising defenses, the reality is that most often this simply serves to postpone the divorce decree. So long as the spouse moving for divorce can prove the grounds necessary for divorce, at best the spouse raising the objections will succeed in delaying the divorce judgment until the defects can be cured.
