Jan12026
Family Law Q&A Series

Can I file for divorce if we are still living in the same home? – North Carolina

Short Answer

Usually, no. In North Carolina, an absolute divorce based on one-year separation generally requires spouses to live in separate residences for at least one year, not just separate bedrooms in the same home. If spouses still live under the same roof, the one-year separation clock typically has not started. In some situations, a spouse may instead consider a “divorce from bed and board” (a court-ordered separation) if legal grounds exist.

Understanding the Problem

In North Carolina family law, the key question is whether a spouse can start an absolute divorce case while both spouses still live in the same home. The decision point is whether the spouses have “separated” in the way North Carolina law requires for an absolute divorce, including the timing of when the separation period begins. If the legal separation requirement is not met, the court may not grant an absolute divorce based on one-year separation.

Apply the Law

Most North Carolina divorces are granted as an absolute divorce after the spouses have lived separate and apart for at least one year. “Separate and apart” generally means living in different residences with the intent that the separation be permanent. Only one spouse needs to have the intent to remain separated, but the spouses still must actually live apart. The divorce case is filed in North Carolina District Court, and venue is proper in the county where either spouse resides.

Key Requirements

  • One-year separation in separate residences: The spouses must live separate and apart for at least one year, which generally requires different homes, not just separate rooms.
  • Intent to remain separated: At least one spouse must intend for the separation to be permanent during the separation period.
  • North Carolina residency and proper county: At least one spouse must meet the residency requirement to file in North Carolina, and the case must be filed in a county where either spouse resides.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The scenario asks about filing for divorce while both spouses still live in the same home. Under North Carolina’s one-year separation rule for absolute divorce, living in the same residence usually does not meet the “separate and apart” requirement, even if the spouses live like roommates. That typically means the one-year separation period has not started yet, so an absolute divorce filing may be premature unless the spouses first establish separate residences and remain separated for a full year.

Process & Timing

  1. Who files: Either spouse. Where: North Carolina District Court in the county where either spouse resides (filed through the Clerk of Superior Court). What: A complaint for absolute divorce and related filings required by the county. When: After the spouses have lived in separate residences for at least one full year, and at least one spouse has lived in North Carolina for six months.
  2. Service and response: The filing spouse must have the other spouse served under North Carolina rules. The other spouse typically has a set time to respond after service. Timing and local filing steps can vary by county.
  3. Divorce judgment: If the legal requirements are met and paperwork is in order, the court can enter a judgment of absolute divorce. Some counties handle this by hearing; others may allow an uncontested process with minimal court time.

Exceptions & Pitfalls

  • Same home usually means no “separate and apart” separation: Separate bedrooms, reduced communication, or no sexual relationship typically does not substitute for separate residences when seeking an absolute divorce based on one-year separation.
  • Intent matters, but it does not replace living apart: One spouse’s intent to end the marriage can satisfy the intent piece, but the spouses still generally must live in different residences for the required year.
  • Confusing absolute divorce with “divorce from bed and board”: A divorce from bed and board is a court-ordered separation based on specific misconduct grounds; it is not the same as an absolute divorce. It can matter for safety, possession of the home, and other issues, but it does not automatically dissolve the marriage.
  • County filing choices and waiver issues: Venue is usually proper where either spouse resides, and venue objections can be waived. Filing strategy can affect cost and logistics.
  • Other claims may need attention before the divorce is final: An absolute divorce can move forward even if other family law claims are pending, but some rights can be affected if certain claims are not asserted in time. Getting advice early helps avoid losing leverage or options.

Conclusion

In North Carolina, an absolute divorce based on separation generally requires spouses to live in separate residences for at least one year, with at least one spouse intending the separation to be permanent, plus a six-month North Carolina residency requirement. If both spouses still live in the same home, the one-year separation requirement usually is not met. The most important next step is to confirm the separation date and, if needed, establish separate residences before filing an absolute divorce after one full year.

Talk to a Family Law Attorney

If you’re dealing with a potential divorce but both spouses are still living under the same roof, our firm has experienced attorneys who can help explain what counts as separation in North Carolina and what steps to take next. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Family Law Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.