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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.
Our law firm
recognizes that when it comes to divorce, the
consequences for you and your family are quite
serious. A competent attorney could help you
determine whether a legal separation is right for
you. If you would like more information, or to
schedule a consultation regarding fault-based and
no-fault divorce options,
contact us.
For
additional information, please review the following
pages:
> Our Practice: Divorce
& Separation
> Common questions about Divorce in North Carolina:
Divorce FAQs |
