Divorce
A divorce is the most common method of terminating or breaking the marriage contract. In a divorce, the court declares the marriage contract broken; divides the parties’ property and debts; decides if either party should receive alimony; and determines the custody, support, and visitation with respect to any children the parties may have. Traditionally, divorce could only be granted under certain specific circumstances such as for adultery or mental cruelty. Today, either party may petition the court for a divorce after they have lived separate and apart from their spouse for one year. Separate and apart means that one spouse lives in one place and the other spouse lives in another.
North Carolina is a no fault divorce state. There is nothing for your spouse to contest other than the fact that you have been separated. This rarely happens because it is so easy to prove you have lived in one place and they in another. It is important to note that isolated incidents of sexual intercourse during the separation will not require your time to begin again. However, if you and your spouse reconcile and move back in together it will alter your date of separation.
Another ground for divorce is the incurable insanity of a spouse. Obtaining a divorce on this ground often involves complex court procedures. If you are seeking a divorce because your spouse is incurably insane, you should consult a lawyer.
Annulment
The basic difference between a divorce and an annulment is that a divorce says, “this marriage is broken,” and an annulment say, “there never was a marriage.” An annulment is more difficult and often more complicated to prove, so it is not used very often. Annulments are only possible in a few circumstances, usually where one party deceived the other. If you decide that you want an annulment, you should consult an attorney. If you are seeking an annulment for religious reasons and need to go through a church procedure (rather than, or in addition to, a legal procedure), you should consult your priest or minister.
A divorce is generally easier to get than an annulment. This is because all you need to prove to get a divorce is that you have been separated for one year. How do you prove this? Simply by swearing to it in your divorce pleading and/or in court. However, in order to get an annulment you’ll, in most cases, need to prove more. This proof may involve introducing various documents into evidence, and having other people come to testify at the court hearing.
Grounds for Annulment
Annulments can only be granted under one of the following circumstances:
1. One of the parties was too young to get married. In North Carolina, both parties must be at least eighteen years old to get married. (There are a few exceptions, such as where the woman is pregnant and at least twelve years old or the underage person has parental consent.)If one of the parties is physically impotent.
2. If one party didn’t have the mental capacity to get married. This means the person was suffering from mental illness or mental disability (such as being severely retarded), to such an extent that the person didn’t understand he or she was getting married; or didn’t even understand the concept of marriage.
3. If one party was already married to another person. This might occur if one party married, mistakenly believing his or her divorce from his or her previous spouse was final.
4. If the marriage is incestuous. North Carolina prohibits marriage between certain family members, such as brother and sister, aunt and nephew, or uncle and niece.
If your spouse wanted to stop an annulment, there are several arguments he or she could make to further complicate the case. The annulment procedure can be extremely complicated, and should not be attempted without consulting lawyer.
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