North Carolina Divorce Attorneys Serving Asheville, Hendersonville & Surrounding Areas
In North Carolina, any married couple or separated party can petition a court for an absolute divorce, which is the legal means by which the State dissolves a marriage. While an absolute divorce ends the marriage, it doesn’t specifically address all of the issues typical to a divorce. This is because the entry of a judgment of absolute divorce is actually an action independent from all of the other material issues people think about when using the term "divorce."
Actions for custody of minor children, child support, alimony and equitable distribution are typically filed independently of an action for absolute divorce. In practice, these related actions are typically filed before an action for absolute divorce, because North Carolina requires the parties to be separated for at least one year before applying for an absolute divorce.
Criteria for Obtaining an Absolute Divorce
To obtain an absolute divorce, one or both parties must meet the following requirements:
- The parties must be legally married. Because there is no common-law marriage in North Carolina, the parties must be married in a ceremony recognized by a government. Marriages that are valid in other U.S. states and territories are acceptable, and often the court will recognize a marriage performed in a foreign country as well.
- At least one of the parties must have been a resident of North Carolina for at least six (6) months prior to applying for the divorce. This is a jurisdictional requirement that cannot be waived, even with the agreement of the parties – North Carolina Statute § 050-8. Jurisdiction is often confused with venue. Put simply, jurisdiction is the theory by which the State of North Carolina has the authority to hear your case, while venue deals with where in North Carolina your case should be filed and heard. For example, if you live in Asheville, the appropriate venue for your case is Buncombe County District Court. It does not matter if the opposing party resides in the same city or county as the other party. For example, if you live in Asheville and your spouse has moved to Hendersonville, you can file the action for divorce in either Buncombe County or Henderson County. North Carolina Statute § 50-3.
- If the other party is not a resident of the state, the Court must ensure it has jurisdiction over the out-of-state party. There are various ways to accomplish this under a theory called “long arm jurisdiction,” which is an issue that can be addressed by one of our experienced attorneys if applicable to your case..
- Again, the parties must have been separated for at least one year prior to the entry of a judgment of absolute divorce. “Separated” means the parties physically live apart, in separate residences (living in separate parts of the same house is generally not sufficient). While many parties separate and never have any significant contact after separation, there are many cases where determining the final date of separation can be more difficult. Brief periods of reconciliation, or even less well-defined periods of intimate contact between the parties, can make determining an exact date of separation difficult. If there is any question as to the parties’ exact date of separation, you should speak to one of our experienced attorneys for guidance on this issue.
While the entry of an absolute divorce dissolves the marriage, it does not address any other material issues between the parties, such as the division of property, custody of the children, support for minor children or the award of attorney’s fees or alimony. All of these matters can be handled during the divorce process, but they are not necessarily handled by the entry of an absolute divorce. In fact, if someone obtains an absolute divorce before addressing these other matters, the absolute divorce can prevent the parties from later seeking things such as alimony, equitable distribution or attorney’s fees.
Comprehensive Solutions for Your Absolute Divorce
If you’re seeking a judgment of absolute divorce, make sure you speak to one of Van Winkle’s experienced family law attorneys. While an absolute divorce can seem simple, the court system is fraught with nuanced case law, as well as complicated statutes, rules and even specific local customs and procedures specific to Asheville, Hendersonville, Waynesville and other areas of Western North Carolina.
Our divorce lawyers can help you secure an absolute divorce and, more importantly, assist you in pursuing alimony, equitable distribution, attorney’s fees, child custody, child support or any other applicable relief based on the facts and circumstances of your case. Don’t make the mistake of accidently waiving your right to something to which you might be entitled.
We have a wealth of experience in a wide variety of family law cases, as well as experience as former prosecutors, legal aid attorneys and long-time civil litigators. With the support of the largest and oldest law firm in Western North Carolina, Van Winkle is ready to help you get the best possible results in your case.
Contact us today to set up a consultation with one of our trusted attorneys.