There are two types of divorce in North Carolina – divorce from bed and board and absolute divorce. A divorce from bed and board is a fault-based divorce and if granted, the spouses cannot remarry because the marriage is not severed – it is just a legal separation. An absolute divorce, if granted, means the spouses can remarry once the divorce is finalized.
The fault bases for a divorce from bed and board are abandonment, cruel or barbarous treatment that endangers the life of the other spouse, indignities that render the other spouse condition intolerable and burdensome, drug / alcohol abuse, and adultery. Abandonment is when one spouse ends the cohabitation, without justification and consent of the other spouse, and without intent to cohabitate again.
In North Carolina there are two grounds for absolute divorce. The first and by far the most common is a one-year separation. A divorce will be granted if the spouses lived separate and apart for a year and a day, and at least one spouse intended that the separation be permanent.
The other ground for absolute divorce is incurable insanity. This requires that the couple live separate and apart for 3 years without cohabitation. The insane spouse has to be institutionalized for 3 years and is determined to be incurably insane OR adjudicated insane 3 years ago and still is to this day.
In order to get an absolute divorce in North Carolina, your spouse’s consent is not required. If you have been separated for a year and a day, with no reconciliation, you can file for divorce. Once you file for divorce, you will need to serve the papers on your spouse and then give your spouse thirty days to respond. If your spouse does not respond, you will then make the appropriate filings and go in front of the court, and your divorce will be granted based on the separation.
Unlike North Carolina law, which requires a one year separation for parties that want a divorce, South Carolina allows parties to obtain a divorce at any time so long as one of the following grounds for divorce is met: 1) adultery, 2) desertion for a period of one year, 3) physical cruelty, or 4) habitual drunkenness (including the use of any narcotic drug). If you don’t meet any of those grounds, then you may still obtain a divorce after a mandatory one year separation.