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Divorce - where to file?

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Peach

Junior Member
What is the name of your state (only U.S. law)? North Carolina

My husband and I moved to North Carolina, from New York, in January 2009 and we are at the point where he is threatening divorce. I know that NC law states that we must be seperated for one year before filing for divorce, but it also says that we must be residents for one year. Does that mean that we have to wait until January 2010 to seperate and then wait until January 2011 to actually get divorced? Should (or can) we file in NY even though we have not lived there for over 6 months?
 


mistoffolees

Senior Member
What is the name of your state (only U.S. law)? North Carolina

My husband and I moved to North Carolina, from New York, in January 2009 and we are at the point where he is threatening divorce. I know that NC law states that we must be seperated for one year before filing for divorce, but it also says that we must be residents for one year. Does that mean that we have to wait until January 2010 to seperate and then wait until January 2011 to actually get divorced? Should (or can) we file in NY even though we have not lived there for over 6 months?
You will not be able to file in NY since you are not a resident. If you had filed before you left, then NY law would prevail, but it's too late now.

NC is not quite as bad as you think. First, you only need to be a resident for 6 months to file. Then, you have to live apart for 1 year. If you moved into separate residences April 1, 2009, for example, you could file for divorce one year from that date. The sooner one of you moves out, the sooner the clock starts ticking. It doesn't appear that you need a legal separation - just living separately.

The other option is to file for a fault divorce. There is no waiting period for that, but it will probably be more complicated and expensive since stbx can challenge it. Different sites list different grounds for a fault divorce. One site says only incurable insanity is a covered fault. Another site lists 4 grounds and one site lists 7. If you want to go that route, you should consult with a local attorney or do more research than my cursory Google search to find out which applies.
 

Golfball

Member
As far as I can tell from looking at the NCGS, the only options for divorce in NC are either no-fault, or incurable insanity. (Incurable being defined as 3 years or longer of confinement in a psychiatric facility.)

One of the parties must be resident for at least 6 months prior to filing divorce, but the year of separation can be anywhere. (i.e. both parties could separate elsewhere, one party could move to NC, and once the resident party has a) lived in NC for 6 months, and b) been separate for 12 months, either party can file in NC.) The plantiff does not have to be a resident, although in that case, the defendant must meet the residential requirements.

And mist is correct, the two parties must live separately. (Different addresses qualifies as a separate residence, as far as I know. I'm not sure whether the same address and different roofs would suffice. Separate rooms under the same roof and at the same address do not qualify.) No filing is necessary to start the separation clock.
 

Ohiogal

Queen Bee
As far as I can tell from looking at the NCGS, the only options for divorce in NC are either no-fault, or incurable insanity. (Incurable being defined as 3 years or longer of confinement in a psychiatric facility.)

One of the parties must be resident for at least 6 months prior to filing divorce, but the year of separation can be anywhere. (i.e. both parties could separate elsewhere, one party could move to NC, and once the resident party has a) lived in NC for 6 months, and b) been separate for 12 months, either party can file in NC.) The plantiff does not have to be a resident, although in that case, the defendant must meet the residential requirements.

And mist is correct, the two parties must live separately. (Different addresses qualifies as a separate residence, as far as I know. I'm not sure whether the same address and different roofs would suffice. Separate rooms under the same roof and at the same address do not qualify.) No filing is necessary to start the separation clock.
Re the bolded. Even with having separate addresses they also must keep themselves separate. NO sex -- not for good old times, memories or one for the road. Sex is NOT living separate an apart.
 

mistoffolees

Senior Member
Re the bolded. Even with having separate addresses they also must keep themselves separate. NO sex -- not for good old times, memories or one for the road. Sex is NOT living separate an apart.
Right. If they slip up, the clock starts all over again.
 

Peach

Junior Member
Thank you all for the replies. Now that I have the information I can be better prepared.
 

Golfball

Member
Re the bolded. Even with having separate addresses they also must keep themselves separate. NO sex -- not for good old times, memories or one for the road. Sex is NOT living separate an apart.

From what I've heard, it's at the decision of the court on whether the separation was real or not, if a horizontal tango occurs. It's not a guaranteed restart of the clock (see above caveat), but it certainly doesn't help things, and IMNSHO, it would be very difficult to reverse a judge deciding to restart the clock.

Better safe than sorry, in more ways than one. Don't boink the STBX.
 

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