What happens to issues like property division, custody, or support if the case shifts from an absolute to a regular divorce? – North Carolina

Short Answer

Under North Carolina law, moving from a fault-based “regular” divorce from bed and board to a no‑fault absolute divorce does not automatically wipe out custody or support issues, but it can permanently affect property division and some spousal support rights. Custody and child support can be raised and decided before, with, or after an absolute divorce. However, the right to equitable distribution (property division) must be asserted before the judgment of absolute divorce, with only a narrow six‑month exception when the defendant was served by publication and did not appear. Alimony and postseparation support must also be pending or preserved when the absolute divorce is entered.

Understanding the Problem

The question asks what happens, under North Carolina family law, to property division, child custody, and support when a case changes posture between an absolute divorce and a “regular” divorce from bed and board. Put another way: if a couple starts with claims tied to marital misconduct (divorce from bed and board) and then an absolute divorce based on one‑year separation goes forward, what becomes of the unresolved claims for equitable distribution of property, child custody, child support, and spousal support? The focus is on how this shift in the type or timing of the divorce affects whether those related claims remain alive or are lost.

Apply the Law

North Carolina distinguishes between an absolute divorce (which ends the marriage) and a divorce from bed and board (a court‑ordered separation that does not dissolve the marriage). The key question is not so much which type of divorce is pending, but whether claims for custody, support, and equitable distribution have been properly filed and preserved when an absolute divorce judgment is entered. The main forum for these issues is the North Carolina District Court under N.C. Gen. Stat. § 7A-244. A critical timing rule is that an absolute divorce obtained in North Carolina destroys the right to equitable distribution unless that right is asserted before entry of the divorce judgment, with only limited statutory exceptions.

Key Requirements

Element #1 – Absolute divorce ends “rights arising out of the marriage”: Once the court enters an absolute divorce under Chapter 50, most marital rights end, but pending claims for alimony or postseparation support survive, and property and support rights already reduced to orders or judgments remain in place.
Element #2 – Equitable distribution must be asserted before absolute divorce: A spouse’s right to have the court divide marital property through equitable distribution is lost when a North Carolina absolute divorce is entered, unless an equitable distribution claim (action or motion in the cause) is on file beforehand, or the narrow post‑publication six‑month window applies.
Element #3 – Custody and child support are flexible and can be joined or separate: Claims for child custody and child support can be filed as independent actions or joined with either kind of divorce; they are not destroyed simply because an absolute divorce is granted, and can be modified later based on changed circumstances.

What the Statutes Say

N.C. Gen. Stat. § 50-11 (Effects of absolute divorce) – States that after an absolute divorce, rights arising out of the marriage generally cease, preserves pending alimony/postseparation support claims, and provides that an in‑state absolute divorce destroys the right to equitable distribution unless timely asserted, with narrow exceptions.
N.C. Gen. Stat. § 50-20 (Equitable distribution) – Authorizes the court to classify and equitably distribute marital and divisible property after separation when a party applies, and ties that remedy to having a proper equitable distribution claim pending.
N.C. Gen. Stat. § 50-13.5 (Custody and support procedure) – Allows custody and child support claims to be joined with or brought separately from actions for absolute divorce or divorce from bed and board, and clarifies that custody/support orders can be entered irrespective of which spouse is at fault in the divorce.

Analysis

Apply the Rule to the Facts: In a typical North Carolina case, a spouse may file for divorce from bed and board, plus claims for custody, child support, alimony, and equitable distribution. Later, when the one‑year separation requirement is met, one party files or pursues a claim for absolute divorce and the court enters that judgment first. If the equitable distribution, alimony, and postseparation support claims were already filed and pending before the divorce judgment, they survive and continue in district court. If a spouse never filed an equitable distribution claim before entry of an in‑state absolute divorce, the right to court‑ordered property division is generally lost, unless the defendant was served by publication and files within six months. Custody and child support can still be filed or adjusted after the absolute divorce, because the statutes treat those as ongoing issues tied to the children’s best interests, not as rights that automatically end when the marriage ends.

Process & Timing

Who files: Either spouse. Where: District Court in a North Carolina county with proper venue, usually where either party resides, for divorce and equitable distribution (see N.C. Gen. Stat. § 50-3) and where the child or a parent resides for custody/support. What: A complaint or counterclaim stating claims for absolute divorce and, if desired, divorce from bed and board, equitable distribution, alimony/postseparation support, child custody, and child support. When: The equitable distribution, alimony, and postseparation support claims should be filed any time after separation but before entry of an absolute divorce judgment, absent the limited publication‑service exception.
Once filed and served, the court can sever and try the absolute divorce first, allowing the marriage to end, while leaving equitable distribution, custody, and support claims pending. Those remaining issues then move forward through discovery, settlement efforts, and hearings, often over several months or longer depending on county dockets and case complexity.
After hearings or trial, the court enters separate written orders: a divorce judgment, an equitable distribution judgment allocating marital and divisible property, and custody/support and alimony/postseparation support orders as applicable. These orders can later be modified where the statutes allow (for example, custody and child support upon a substantial change of circumstances).

Exceptions & Pitfalls

Publication‑service exception: If a defendant was served by publication in the divorce and did not appear, that spouse may still file for equitable distribution within six months after the divorce judgment, even though the divorce is already entered.
Out‑of‑state divorces without personal jurisdiction: An out‑of‑state absolute divorce that lacked personal jurisdiction over the dependent spouse does not cut off that spouse’s alimony rights under North Carolina law.
Voluntary dismissal traps: Voluntarily dismissing a pending alimony or postseparation support claim and then allowing an absolute divorce to be entered can strip the court of jurisdiction to re‑establish that claim later.
Failing to assert equitable distribution: Not filing an equitable distribution claim before an in‑state absolute divorce (outside the publication‑service scenario) usually means the court can never divide marital property under the equitable distribution statute.
Confusion about divorce from bed and board: A divorce from bed and board is only a judicial separation; it does not end the marriage, does not itself trigger the loss‑of‑equitable‑distribution rule tied to absolute divorce, and does not give either spouse the right to remarry.
Notice and joinder issues: In property cases, failing to join all title‑holding parties can invalidate an equitable distribution order affecting that property, causing delays and possible loss of remedies.

Conclusion

When a North Carolina case shifts between divorce from bed and board and absolute divorce, the controlling issue is which claims are properly filed and pending at the moment an absolute divorce judgment is entered. Custody and child support can be pursued and adjusted before or after the divorce. In contrast, equitable distribution and many spousal support rights hinge on timely filing. To protect property division, a spouse must file a claim or motion for equitable distribution in district court before the absolute divorce judgment is signed, subject only to the narrow publication‑service exception.

Talk to a Family Law Attorney

If a North Carolina case involves divorce, custody, support, or property division and may be moving between a divorce from bed and board and an absolute divorce, our firm has experienced family law attorneys who can help explain the options and timing requirements. 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.