top of page

Divorce and the One-Year Rule

It is important to understand the legal significance of getting a divorce in North Carolina. Oftentimes clients will call seeking representation simply for the purposes of getting a divorce from their spouse. Prospective clients may even understand the twofold requirement in North Carolina pursuant to N.C. Gen. Stat. § 50-6, namely, that “the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” Essentially, clients are sometimes hoping to make quick work of their marriage-gone-south—“I’ll just live apart from my ex for one year, and, voila, my problems are solved.”

During a marriage—even those marriages lasting a relatively short time—spouses inevitably accrue what is deemed “marital property” under the law. Perhaps there are funds in a bank account, for example, or real property the parties purchased during the marriage. Regardless of title (i.e., whose name is listed on a respective account or deed) property may well be denominated as marital. Moreover, a husband or wife may be entitled to financial support from the other party based on their historic incomes and standard of living. Even if, ultimately, one spouse is unlikely to receive alimony, he or she may succeed on a claim for temporary, post-separation support. This form of financial support may have significant impact on a newly separated spouse having to shoulder all the monthly expenses.

How do marital property and financial support from one spouse to another relate to absolute divorce? N.C. Gen. Stat. § 50-11 and relevant case law make plain that unless an action asserting one’s right to alimony, equitable distribution (dividing the marital property between the parties), or both has been made prior to the judgment for absolute divorce, the parties lose the ability to assert those claims. With respect to alimony, “[w]hen a party has secured an absolute divorce, it is beyond the power of the court thereafter to enter an order for alimony.” Mitchell v. Mitchell, 270 N.C. 253, 154 S.E.2d 71 (1967). Concerning equitable distribution, “a judgment of absolute divorce destroys the right to equitable distribution unless the right is asserted prior to judgment of absolute divorce.” Howell v. Howell, 321 N.C. 87, 361 S.E.2d. 585 (1987).

The message is simply this: do not assume the simple filing of a petition for absolute divorce will be a quick fix to your marital woes. Perhaps, after talking it over with your attorney, you will learn you have significant rights that need tending to first. This may well accrue to your benefit.

Charlotte Divorce Lawyer and Family Law Attorney

Recent Posts
bottom of page