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What if My Spouse Won’t Give Me a Divorce?

By Amy A. Edwards

On a regular basis, I hear people talking about a friend or someone they know who is stuck in a bad marriage but they can’t do much about it because his wife (or her husband) won’t give that person a divorce. In North Carolina, that is not how it works.

Separation and Divorce

In our State, if someone wants a divorce, the law requires a separation of at least 12 months.  For that requirement, all the law requires is that a husband and wife live in separate residences and at least one spouse (not both) must intend for the separation to be permanent. The law often refers to this as a permanent separation. Otherwise, simply living apart without at least one spouse intending to permanently separate would include happily married people who simply live separately for long periods of time, such as military spouses. 

No agreement to separate is necessary. North Carolina doesn’t require any paperwork or consent for someone to be separated.  If a spouse is unhappy in the marriage, he or she can simply leave at any time although there are a number of reasons doing so without legal advice can be a bad idea. For example, a spouse who leaves the residence risks committing abandonment, which is marital fault in alimony cases. It can also create a messy dispute over how often each parent sees the children unless there is an agreement before the separation.  But technically, no one is prohibited from leaving the home.

Signing Paperwork

Another reason people think that a spouse won’t give him or her a divorce is because they need the other person to sign something. That is also not the case in North Carolina. 

One type of routine paperwork people often sign is more for convenience than consent. When a lawsuit (also known as a claim) for a divorce is filed, the other person must be “served” with a copy of it and a summons. Rather than having a sheriff serve someone by handing the paperwork to him or her, that person can choose to sign an “acceptance of service” instead. If the spouse does not sign the acceptance of service, it just means that the sheriff will serve the spouse by handing him or her a copy of that paperwork instead. But the spouse doesn’t have to give consent for the divorce or consent to be served. 

Another document that spouses frequently sign is a separation agreement, which is a contract that settles all of the marital claims including equitable distribution of marital property, financial support and/or custody of the children. It is usually more convenient to sign a separation agreement settling your case than to go to court.  But no separation agreement is required in order to get divorced.  In North Carolina, a spouse can file a claim for divorce on the day after the one-year separation ends, period. Your spouse does not have any say in whether you file a claim for divorce. As long as you meet the requirements for filing a divorce, it is your right to do so.

While you don’t have to divide your marital property or figure out what to do about alimony before the judge signs the divorce decree, you do have a deadline to file those claims. If they aren’t filed and pending by the time the divorce decree is entered, they are forever gone. In other words, most people hope they can agree to sign a separation agreement that resolves those claims before the divorce so they can avoid having to file claims for marital property and/or alimony. But the spouse doesn’t have to consent to the divorce by signing a separation agreement.

Child custody and support can usually be filed at any time before a child reaches the age of 18. The timing of a divorce or the fact that the parents are married, separated or divorced generally has nothing to do with those cases.

Laws change. This article is current as of 2021.

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