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The Difference Between a Divorce and an Annulment in North Carolina

There is more than one way to terminate a marital union in North Carolina. North Carolina law provides one other method other than divorce: annulment. However, a marriage can only be annulled in limited situations when there is proof of a void or voidable marriage; whereas anyone can obtain a divorce without showing proof of what caused a marriage’s breakdown. Annulments may seem like the preferable option when wanting to dissolve a marriage, as it does not only that, but also strikes a marriage from existence, and returns married individuals to their original status: unmarried. Because of this, annulments are less easier to obtain than a divorce. The District Court hears all cases for divorce or annulment within the State.

What is a North Carolina Divorce Decree?

A North Carolina divorce decree is the official court document authorizing the release of spouses from matrimonial bonds. Normally, a divorce decree will contain the details of a divorce and parties to a divorce, as well as all court decisions on child support, child custody, visitation timetables, alimony, and asset/debt distribution. This decree is legally binding. As such parties are required to comply with the court’s judgment or be held accountable for contempt of the court.

The records contained in documents related to family court include both marriage and divorce records. Both types of records contain information that is considered very personal to the parties involved, and it is recommended that those parties maintain these records with care in order to make changes in the future. The personal nature of these records results in both being considerably more difficult to find and obtain when compared to other types of public records. In many cases, these records are not available through either government sources or third party public record websites.

What is an Annulment in North Carolina?

An annulment in North Carolina has one effect: it cancels a void or voidable marriage and reverts the parties to single status. Under the law, a void marriage is one that is invalid while a voidable marriage is one that is not legally void but becomes so when an annulment decree is issued by the court. Annulment is allowed only when certain statutory grounds are established and proven in a court of law. A judge will not grant an annulment for grounds such as short-timed or unconsummated marriages. Alone, these are not sufficient grounds for annulment in the State.

There is one type of marriage that is intrinsically void in North Carolina: Bigamy (G. S. § 51–3).. Legally, there is no need to petition for annulment with the court in the case. The marriage is automatically void. However, the injured party may still file to obtain a decree of annulment stating that the marriage never took place.

North Carolina law states five grounds for the annulment of voidable marriages:

  • Sham/false pregnancy: Marriages contracted on the belief that the female party is with child. When these parties separate within 45 days of being married and continuously so for 1 year, this ground is eligible for annulment. However, when a child is birthed within 10 months of being separated, it becomes eligible for divorce, not annulment
  • Incest: Familial relations that are closer than first cousins or double first cousins. For example, parents/kids
  • Underage: One spouse was under 16 years of age and got married without parental permission
  • Impotence, and
  • Mental Incapacity

None of these grounds, except bigamy, allow for an annulment after the death of either spouse if both spouses lived together and had children. Furthermore, no annulment can be issued upon the “underage” ground when the female spouse is pregnant or would have had a child if the child were not deceased. In essence, an individual’s marriage is invalid and eligible for annulment in North Carolina unless both parties make it valid by cohabiting or having children. When this is the case, the only option is to file for a divorce.

Divorce records are available to the residents of the state; however, annulment records are not. Being publicly able to access annulment records will defeat the reason for annulment in the first place: that the marriage between two persons never legally existed and as such, there is no record of it.

Annulment vs Divorce in North Carolina

While an annulment invalidates a marriage and makes it nonexistent in North Carolina, divorce has the opposite effect: it ends the marriage but does not completely erase the marital union. In this, the effects of annulment and divorce are different. Other dissimilarities are the statutory grounds and protections.

Statutory grounds:

In North Carolina, divorce is formally called “absolute divorce,” and any individual can obtain a divorce on no-fault grounds. When no-fault is the cause of action, it simply means that no one committed any wrong yet the marriage is completely broken and both spouses cannot continue the marriage. However, to be eligible for divorce, the spouses must be separated for a minimum of one year and a day, and be residents for at least six months before the divorce action. Unlike annulment, there are no fault-based grounds for divorce in North Carolina. One exception is in cases where one party is incurable insane (G. S. § 50–5.1).. Here, the spouses must be separated for at least 3 years and the infirmed spouse must be committed by a judge within or from that period. Such a person must also be declared to be incurably insane by two specialty doctors.

Legal protections:

An annulment does not offer the complete legal protections that a divorce does. For example, it is not possible to be awarded equitable distribution of marital property or permanent spousal support in annulment cases. However, the judge may order a temporary form of alimony known as post-separation support. Also, spouses can request court orders for parental matters such as child custody, visitation, and support in both annulment and divorce.

Is an Annulment Cheaper Than Divorce In North Carolina?

The associated costs of an annulment and divorce proceeding are influenced by several factors. Some of which include: the level of difficulty in proving statutory grounds, the length of time between filing and dissolution, and the time taken to resolve marital disputes. An annulment will not be cheaper than a divorce because certain grounds must be demonstrated and found to be true, and this is often done by litigation. When a case goes on for a long time, court costs and legal fees rise and it may become difficult to meet them. Therefore, parties may be better off filing for a divorce, as it is possible to obtain a divorce without needing to prove anything except a marriage breakdown, and may be faster and less cost-intensive if it is uncontested.

What is an Uncontested Divorce in North Carolina?

An uncontested divorce, otherwise known as a no-fault absolute divorce, may be filed with the court by spouses who do not dispute the terms of their divorce as regards spousal support, child care/custody, property distribution, and visitation. A divorce may also be uncontested when any defendant fails to file an answer to a Complaint for Divorce within a period specified by law or court rule. Generally, uncontested divorces are more cost-effective and faster than contested divorces. Spouses get to agree on and set the terms of their divorce without the court’s interference.

Where to Get an Uncontested Divorce Form in North Carolina

Like contested divorce, parties filing for uncontested divorce must meet state residency and separation requirements. That is both parties must have resided within North Carolina for 6 months, at least, and lived apart for at least one year preceding the action. The following forms will need to be filed to start the process:

  • Complaint for Absolute Divorce
  • Civil Summons
  • Domestic Civil Action Cover Sheet
  • Servicemembers Civil Relief Act (SCRA) Affidavit
  • Petition to Proceed as an Indigent (if applicable)

Additional forms that may be necessary include:

  • Judgment of Absolute Divorce
  • Notice of Hearing
  • Waiverand Answer (if applicable)
  • Affidavit of Service of Process by Registered or Certified Mail (if applicable)
  • Certificate of Absolute Divorce (DHHS 2089/Vital Records) (to be obtained from the Clerk on the date of hearing)

Divorce forms can be downloaded from the North Caroline Divorce Packet (page 25 to 49). Also, the eCourts Guide & File platform can be used to arrange these documents/forms.

Uncontested divorce records in North Carolina can be obtained (inspected and copied) by anyone under the Public Records Law, G. S. 132–6.2, and per the policies of the North Carolina Administrative Office of the Courts (NCAOC).

Records that are considered public may be accessible from some third-party websites. These websites often make searching simpler, as they are not limited by geographic location, and search engines on these sites may help when starting a search for specific or multiple records. To begin using such a search engine on a third-party or government website, interested parties usually must provide:

  • The name of the person involved in the record, unless said person is a juvenile
  • The location or assumed location of the record or person involved. This includes information such as the city, county, or state that person resides in or was accused in.

Third-party sites are independent from government sources, and are not sponsored by these government agencies. Because of this, record availability on third-party sites may vary.

How Do I Get a Copy of my Divorce Decree in North Carolina?

Ex-spouses may obtain copies of their divorce decrees or judgments from the offices of the Clerks of District Court where the case was heard. The locations and contact information of the Clerks can be obtained from the website of the North Carolina Judicial Branch. Requesters will be charged a fee per request and per page for copies but record inspections are provided at no charge. The fee for copy requests is 25 cents per page. The most common request methods are phone and walk-in requests.

Divorce and marriage records may be available through government sources and organizations, though their availability cannot be guaranteed. This is also true of their availability through third-party websites and companies, as these organizations are not government-sponsored and record availability may vary further. Finally, marriage and divorce records are considered extremely private due to the information they contain, and are often sealed. Bearing these factors in mind, record availability for these types of records cannot be guaranteed.

How Do I Get a North Carolina Divorce Decree Online?

Members of the public do not have online or remote access to divorce decrees maintained by the Clerks of District Court. Anyone interested in obtaining such decrees must visit the courthouse where the divorce was granted or request using telephone services provided by the Clerk of Court.

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