Dec112025
Family Law Q&A Series

How can I file an uncontested divorce when we’ve already agreed on custody, finances, and property but don’t have a written separation agreement? – North Carolina

Short Answer

In North Carolina, an uncontested “absolute divorce” is based on one year of separation and residency, not on having a written separation agreement. A complaint for absolute divorce can be filed in district court, and custody, support, and property can either be left out of the divorce judgment or addressed through separate claims or a consent order. However, alimony and equitable distribution rights usually must be asserted before the divorce is granted or they are lost. An attorney can often handle e-filing, service, and a summary judgment or clerk hearing with minimal or no personal court attendance, depending on the county.

Understanding the Problem

The question is whether a spouse in North Carolina can move forward with an uncontested absolute divorce when both spouses already agree on custody, finances, and property but have never signed a written separation agreement. The focus is on how to file, what claims must be preserved before the divorce is entered, and whether court attendance can be minimized if one spouse works or lives out of state. The issue stays within North Carolina family law and turns on the one-year separation rule, residency, and how custody and property issues fit into an uncontested case.

Apply the Law

Under North Carolina law, an absolute divorce is primarily a status case: the court ends the marriage if the basic statutory requirements are met. Written separation agreements are helpful but not required for the divorce itself. The district court for the county of proper venue handles the case, and the main timing trigger is one full year of living separate and apart plus at least six months of state residency for one spouse.

Key Requirements

  • Separation for at least one year: The spouses must have lived separate and apart for a continuous year before filing for divorce.
  • North Carolina residency: Either the filing spouse or the other spouse must have lived in North Carolina for at least six months before the complaint is filed.
  • Proper pleadings and preserved claims: The verified divorce complaint must contain the required information, and any claims for alimony or equitable distribution typically must be filed before entry of the divorce judgment if those rights are to be preserved.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the spouses have been separated more than a year, which meets the time requirement for an absolute divorce if that separation was continuous. As long as one spouse has been a North Carolina resident for at least six months before filing, the residency element is satisfied even if one spouse is temporarily working out of state. The lack of a written separation agreement does not prevent filing the divorce; it only means that custody, support, and property terms should be handled through either separate claims, consent orders, or a later written agreement. To avoid waiving rights to alimony or equitable distribution, those claims would generally need to be filed before the court signs the divorce judgment.

Process & Timing

  1. Who files: The spouse seeking the divorce (plaintiff). Where: District Court division of the appropriate North Carolina county (often where either spouse resides, subject to venue rules). What: A verified Complaint for Absolute Divorce that states the dates of marriage and separation, residency, and minor child information, plus any requested related claims (custody, child support, alimony, equitable distribution). When: After at least one continuous year of separation and six months of North Carolina residency for at least one spouse.
  2. After filing, the clerk issues a civil summons. Service is completed under the North Carolina Rules of Civil Procedure, often by certified mail or by the other spouse signing an acceptance of service. Once the defendant’s answer deadline passes (typically 30 days from service, plus any extension), the attorney can pursue an uncontested absolute divorce through a summary judgment motion or, in very simple cases, through the clerk if statutory conditions are met.
  3. For uncontested divorces, the court or clerk reviews affidavits, the complaint, and any proposed judgment. In many counties, the judge can grant an absolute divorce based on written materials without requiring live testimony from the filing spouse, especially when using summary judgment procedures. The final document is a Judgment of Absolute Divorce, which ends the marriage but does not automatically include custody or property terms unless those were properly raised and resolved.

Exceptions & Pitfalls

  • Failing to file alimony or equitable distribution claims before the divorce is granted can permanently waive those claims in most situations.
  • Informal agreements about custody, support, and property are not enforceable like court orders; without a consent order or separation agreement, either spouse can later change course.
  • Service mistakes (wrong address, unsigned green cards, or no valid acceptance of service) can delay the case or affect the validity of the judgment.
  • Some counties still expect limited in-person testimony or specific local forms even in uncontested or summary judgment divorces, so local rules must be checked in advance.
  • Out-of-state work or temporary relocation does not automatically defeat residency, but if true domicile shifted to another state, the six-month residency requirement could become an issue.

Conclusion

In North Carolina, an uncontested absolute divorce does not require a written separation agreement; it requires one year of separation, proper state residency, and a verified complaint filed in district court. Informal agreements on custody, support, and property can be implemented through consent orders or written agreements, but claims for alimony and equitable distribution generally must be filed before the divorce judgment is entered. The next step is to prepare and file a verified Complaint for Absolute Divorce in the proper county and ensure timely service on the other spouse.

Talk to a Family Law Attorney

If a spouse is pursuing an uncontested North Carolina divorce after a year of separation and wants to handle custody, finances, and property efficiently, our firm has experienced attorneys who can help explain options, preserve important claims, and manage filing and hearings. 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 any specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is 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.