Absolute Divorces
Friday, June 3rd, 2011
North Carolina Separation Divorce Lived Separate Equitable Distribution Lawyers Attorneys
THOMAS B. BRUCE v. HARRIET B. BRUCE
COURT OF APPEALS OF NORTH CAROLINA
January 15, 1986, Heard in the Court of Appeals
March 4, 1986, Filed
Plaintiff and defendant were married on 17 December 1939 and separated 6 April 1973. A period of eleven years and approximately nine months elapsed between the date of separation and the filing of the complaint for absolute divorce.
During that time, plaintiff and defendant continuously lived separate and apart. On 25 January 1985 plaintiff husband filed a complaint for absolute divorce based on one year's separation, G.S. 50-6, and for equitable distribution of the marital properties. Defendant wife filed an answer and asserted as an affirmative defense the statute of limitations as a bar to plaintiff's action for absolute divorce. The trial judge granted plaintiff an absolute divorce and retained jurisdiction for purposes of equitable distribution under G.S. 50-20. Defendant appealed.
Issue:
- Whether the ten year statute of limitations, G.S. 1-56, applies in an action for absolute divorce under G.S. 50-6?
The Court finds that under Chapter 50 of our General Statutes' governing divorce and alimony does not provide for a statute of limitations in an action for absolute divorce based on one year's separation. Nor is there a provision in the statutes of limitation, G.S. 1-14 through 1-56, expressly applicable to divorce actions. G.S. 50-6 requires that the husband and wife have lived separate and apart for one year, and that the plaintiff or defendant has resided in the State for a period of six months. However, these are jurisdictional requirements. The requirement, that parties live separate and apart for one year, apply to the year prior to institution of the suit. Likewise, the six months residency requirement means the six months next preceding commencement of the action.
Separation, as a ground for divorce, is a type of continuing offense. It begins on the date the parties physically separate with the requisite intention that the separation remains permanent and the cause of action under G.S. 50-6 accrues at the end of one year. However, the cause of action continues to accrue even after the one year period so long as the parties remain "separate and apart" within the meaning of the statute. G.S. 50-6 looks only at the year immediately preceding the filing of the complaint. We quote with approval Professor Lee's analysis of the application of G.S. 1-56 to an action for divorce. The court concluded that balancing the statute of limitations' purposes against the public policies of endeavoring to maintain the marital state and the policy against denying divorce to parties who demonstrated a ground for divorce showed that the general, residuary statute of limitations under N.C. Gen. Stat. § 1-56 did not apply to actions for absolute divorce under N.C. Gen. Stat. § 50-6. The court also held that N.C. Gen. Stat. § 50-6 manifested the state's policy that the marriage was not viable or worth saving if the parties had lived separate and apart for one year. The court further found that, given the formal and clear expression of the legislature's will, the trial court was not at liberty to interpolate or to superimpose conditions and limitations that § 50-6 itself did not contain.
Discussion:
For the reasons stated we affirm the trial court's granting an absolute divorce and retaining jurisdiction over the marital property for purposes of equitable distribution.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
About the Author
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
my husband applied for divorce. his solicitor sent me the decree nisi, but i never got decree absolute?
i did not have a solicitor so where do i get the proof from that i am divorced. As i have no paperwork that states that i am.
Where it was filed will give you a copy, or contact his solicitor and get a copy.
Absolute Divorces
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North Carolina Absolute Divorce Lived Separate One Year Summons Served Personally Summary Judgment Lawyers Attorneys
WILLIAM LEE DUNEVANT, Plaintiff v. ELIZABETH ANN LEWIS DUNEVANT, Defendant
COURT OF APPEALS OF NORTH CAROLINA
September 14, 2000, Heard In the Court of Appeals
February 6, 2001, Filed
Plaintiff and defendant were married on or about 14 February 1979 in Danville, Virginia. No children were born of the marriage. On 29 July 1997, plaintiff filed a complaint for absolute divorce alleging that the parties had lived separate and apart since 3 May 1996. The complaint also asserted a claim for equitable distribution. Plaintiff had defendant personally served with the summons and a copy of the complaint on 1 August 1997. Defendant, however, filed no answer to the pleadings. On 4 September 1997, plaintiff moved for summary judgment as to the issue of absolute divorce. On 5 September 1997, plaintiff filed a "Notice of Motion. A copy of the notice was mailed to defendant. Defendant, nonetheless, did not receive the notice and failed to appear at the hearing. Pursuant to plaintiff's motion, the trial court entered a judgment of absolute divorce on 17 September 1997. Defendant received notification of the divorce decree and moved to set aside the judgment as void. On 14 May 1998, prior to a ruling on the motion, plaintiff died. On 3 February 1999, plaintiff's attorney moved to dismiss defendant's motion for lack of jurisdiction over the person of plaintiff. Defendant, in response, moved to substitute the administrator of plaintiff's estate as plaintiff in the proceeding and moved, once again, to set aside the divorce decree. The court allowed defendant's motion for substitution and concluded that the Divorce Judgment was irregular on its face due to deficiencies in the factual findings on the issues of one-year's separation and North Carolina residency. Consequently, the court set aside the divorce decree, declaring it to be null and void. From the order of the trial court, plaintiff, through his representative, filed timely notice of appeal.
Issue:
- Whether the trial court erred in abrogating the divorce decree?
Discussion:
The Court finds that "a party may obtain relief from a final judgment pursuant to Rule 60(b)(4) of the Rules of Civil Procedure, if she can show that the judgment is void ab initio." Our courts have said that a divorce decree, in all respects regular on the face of the judgment roll, is at most voidable, not void. In light of the foregoing reasoning, this Court held that contrary to the court's conclusion, the divorce decree at issue in this case was in all respects regular on its face. Therefore, the court had no basis upon which to declare the divorce decree void. This is especially true, given that the court specifically found that Defendant was properly served in person with a Summons and the Divorce Complaint.
The Court further states that "the death of one of the parties to a divorce decree results in abatement of the cause of action." Abatement does not occur when the decree affects property rights, and matters touching the parties' property rights under the divorce decree are amenable to alteration or modification upon timely motion, or upon appeal. Here, the divorce decree . . . affected property rights of the parties, and upon timely motion the trial court had jurisdiction to amend, alter, or modify the decree. The trial court did not, however, have the jurisdiction to change the adjudged marital status of the parties. Further, the judgment of absolute divorce entered 17 September 1997 dealt exclusively with the parties' marital status. It in no way passed upon the issue of equitable distribution of the marital property. Defendant moved to set aside the judgment on 21 October 1997, but as fate would have it, plaintiff passed away on 14 May 1998, prior to a ruling on the motion. In view of our foregoing determination that the divorce decree was valid on its face, we hold that the proceeding to set aside the decree was abated upon plaintiff's death.
Conclusion:
Therefore, the trial court was without jurisdiction to vacate the divorce judgment and resurrect the parties' marriage. In sum, the order setting aside the 17 September 1997 divorce judgment is hereby vacated, and this matter is remanded to the District Court, Caswell County, for further appropriate proceedings consistent with this opinion.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
About the Author
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
