2
- College Expenses for children 28 19
- Child Custody and Visitation 29 21
- Finding and hiring a lawyer 31 22
Divorce Grounds and Jurisdiction.
a. Grounds for Divorce Generally. In order for a judge to order a couple to be
divorced, there must be a legal reason, or “grounds” for divorce as specifie
d in the relevant
-called “no fault” divorce states, such as California, Arizona, and others,
“irreconcilable differences,”
or some variant thereof, is sufficient reason for divorce.
Essentially, if one or both of the parties doesn’t wan
t to be married anymore, that is grounds
in such states. Other states require fault, such as adultery, abandonment, or
cruelty. Still other states
, such as North Carolina, require that the parties be separated for a
specified length of time as
a condition of obtaining a divorce. Some states have a
combination of grounds; for example, several fault grounds as well as separation for the
requisite period of time
irrespective of fault. You and your attorney can review the grounds
r state.
b. Grounds for Divorce in North Carolina. There are only two grounds for absolute
this state.
First, divorce may be granted in those exceedingly rare cases where one
or both of the parties is incurably insane and the parties have lived apart for three years due to
such insanity (
N.C. Gen Stat 50-5.1). The only other grounds for absolute divorce, and the
grounds used in the overwhelming majority of cases, is that the parties have lived separate
and apart in excess of one year (
N.C. Gen Stat 50-6). There is no requirement that there be a
separation agreement, only that the parties live in separate places continuously for a
year with the intent not to resume the marital relationship.
Resumption of cohabitation starts
ck all over again. Example: The parties live separately from January 1 through June
17
, a period of six months. They reconcile and live together in the marital home for the
month of July, then split up again on August 1, 20
17. The earliest they can get a divorce in
North Carolina, assuming they continue to live separately, is August
3, 2018.
It is noted that,
by statute, “isolated incidents of sexual intercourse between the parties shall not toll the
statutory period required
for divorce predicated on separation of one year”. For the purpose
of North Carolina family law, the period of separation begins when both of the following two
conditions
exist: (i) the parties reside in separate residences, and (ii) at least one of the p
arties
does not wish to resume the marital relationship.
c. Jurisdiction. In order to issue a decree of divorce, a court must have the
power and
authority, or jurisdiction, to hear and decide the matter. Each state has a statute that define
s
ich divorce cases its courts can hear. Typically, divorce jurisdiction is based on residence
of one or both of the parties. For example, North Carolina law provides that its courts have
authority to decide a divorce case if either the husband or the wi
fe was a legal resident of the
state for at least six month
s preceding the filing of the divorce petition (NC Gen Stat 50-8).
Note that the authority of the court to grant a divorce and divide marital property does not
necessarily mean that t
he court also has authority to divide a military pension or to issue
orders for child support, custody, and visitation
. Authority to decide those issues is based on
another statute and typically turns on where the child resides. Generally, if a court has already
issued a lawful order concerning one of these child related issues, that court retains exclusive