Is This Legal

It depends on where divorce proceedings have been started, and what the residency requirements of the (new) state are.

For example, if A & B are married and have dwelled in NC, if A goes to, let’s say Missouri, and meets the residence requirement there (90 days from what I’ve read), A can file for divorce in MO, even if the one year separation period has not elapsed for NC’s purposes. States have the power to decide the status of their residents.

However, depending on who moved where, who filed in which state, and other relevant circumstances, the court where the action was filed may have its powers limited. For example, the court may not be able to order alimony/separate mtc/PSS, or divide property outside the state. Consult an attorney for full details, “minimum contacts” can get quite murky.

I am the one that left NC. He is still living in NC and he is the one that has started the divorce proceedings. I thought you could not start divorce proceedings in NC until we were separated 1 year and 1 day yet, like I previously stated, I have a court hearing set for next week in NC for divorce and equitable distribution. Isn’t he breaking the law trying to file for divorce before the 1 year time frame?

Double check your paperwork…my husband’s attorney put “Divorce from Bed & Board” when he filed for custody. That was mostly as a formality since she had already moved out. This was in July and their year wasn’t up until November.
Absolute divorce would be filed separately from anything else…

It still also depends on where the divorce action has been filed. Some states do allow non-residents to file for divorce in that state, as long as the other party meets the residency requirement. In my example, if MO allows non-residents to file (I don’t know whether they do), then both A & B can file in MO after the residency period for the resident party has elapsed. (Never mind, you did mention it.)

And as stepmother mentioned, whether the divorce is from B&B, or an absolute divorce, is also relevant, the former is simply an action to forcibly remove one’s spouse from the premises (and affirmatively bar them from returning), the latter severs the legal ties.

Paper work does NOT state divorce from Bed and Breakfast. It is for absolute divorce. I currently have a restraining order in another state against my husband and a police report filed in NC that will clearly show the date I left my residence. Also, he is claiming that there were no children born into the marriage which is also a lie. I gave birth to my son 8 months ago. How can he legally be filing all of this already and making all of these false allegations. I have only been gone for 8 months. I cannot afford to come back to NC to handle these proceedings. I am currently on assisted living, working making $8.00 an hour and cannot afford to fight this. We have a hearing set for next week. The court stated that I can respond by sending a letter, but I am afraid these legal proceedings will continue without me there to defend myself.

If he is in fact filing for absolute divorce and equitable distribution, they should be handled separately. No, he can not legally file for absolute divorce until the one year one day requirement is up. If he has an attorney it sounds as though he has lied to that attorney.
I would gather the information showing the date that you separated, and send a copy along with a letter showing the circumstances. You should also send in a copy of the restraining order so that the courts will know why you are not present. Send the letter to the court, certified mail. Or make a phone call, let them know that you have a 8 month old son born from the marriage, a restraining order, a police report, and are currently not living in NC. Let them know the situation and see if they have any idea how you should proceed. I suggest that you respond to them immediately via telephone since the court date is next week.
If he is granted absolute divorce because you do not dispute the date of separation, the divorce will not be legal. Nothing should affect equitable distribution since you are both entitled to 1/2 the martial assets and debts.
He may not be claiming the child in order to avoid paying child support. Or has doubts that he is the father…I’m NOT suggesting he isn’t, but that may be what he claims. If the child was born while you were legally married to him, then his name should be on the birth certificate and legally his child. You should answer his claim with a copy of the birth certificate…

You cannot file for divorce if you have not been separated for a one year and one day. If your spouse has done so, you need to make sure you tell the judge that on the day you go to court. You also need to take a copy of your child’s birth certificate and make sure the court is aware that a child was born the marriage.

If you have not dealt with your property and spousal support issues you will need to deal with these claims or preserve them before the divorce is granted or you will lose your right to address them with the court.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax


The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.

My husband has hired a lawyer and started divorce proceeding even though we have only been separated for 8 months. We have a court date set for next week. Is this legal? I thought we had to be separated for 1 year before divorce proceedings could begin. BTW I am now living in another state if that matters.