Copyright notice

This article is from the Encyclopedia of North Carolina edited by William S. Powell. Copyright © 2006 by the University of North Carolina Press. Used by permission of the publisher. For personal use and not for further distribution. Please submit permission requests for other use directly to the publisher.

Divorce

by Melissa Semcer, 2006

See also: Marriage

Divorce, like marriage, is a civil contract between the parties involved. Religious and social attitudes toward marriage and property rights made divorce in nineteenth-century North Carolina rare but not impossible. In the colonial period the General Court occasionally ordered separate maintenance, and it often called for alimony. For the marriage contract to be broken, certain conditions had to exist. The marriage must have been legal under North Carolina law and the cause for its termination adultery, cruelty, or desertion (desertion was the most commonly cited). These causes were often cited by women seeking release from restrictions on their right to own or control separate property.

There are two forms of legal divorce in modern-day North Carolina. The older form is absolute divorce, rendering the marriage nonexistent by dissolving it; this was formerly granted only for serious causes, such as adultery or impotence. More recently, divorce from bed and board, a state of legal separation, became possible. After the American Revolution and into the early nineteenth century, the General Assembly had the sole authority to grant both types. After 1827 the superior court in each county could also award divorces, and after a constitutional reform in 1835 only the court could do so.

Over the years, it has become easier to obtain a divorce in North Carolina. Either husband or wife may be granted a divorce without the consent of the other spouse, making it possible for either person to leave the marriage. North Carolina has a no-fault divorce policy, meaning that plaintiffs do not have to prove that they are the injured party. Children cannot be used as grounds for divorce.

North Carolina has two technical requirements for divorce: the husband and wife must prove that they have resided separately for one year, and the plaintiff must have been a resident of North Carolina for at least six months. In instances of spousal abuse, being turned out of the home, adultery, or abandonment, the mandatory one-year separation can be waived and the divorce obtained immediately. All other laws have been added, as deemed necessary, on a case-by-case basis. Just as with divorce, mutual agreement is not required to become legally separated; however, the plaintiff may not move from the state until the divorce is final. If the husband and wife live together during the one-year period of separation, regardless of whether they resume sexual relations, the separation is considered to be null and void.

Divorces involving children must address the issue of child custody. As in other states, custody in North Carolina is determined through a mediation process. Child support and alimony are considered on a need-basis system. The amount of child support, awarded to the parent who has sole custody of the child or children, is determined by the other spouse's ability to pay and the amount needed by the child or children to maintain a "normal" lifestyle. Alimony is decided by the same standards.

References:

Helen F. M. Leary, North Carolina Research, Genealogy, and Local History (1996).

Michael H. McGee, Separation and Divorce in North Carolina (1984).

Additional Resources:

Senate Bill 514, NC General Assembly:https://www.ncleg.net/Sessions/2011/Bills/Senate/PDF/S514v5.pdf

Marriage, Chapter 51, NC General Assembly: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/pdf/ByChapter/Chapter_51.pdf

Divorce and Alimony, Chapter 50, NC General Assembly: http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_50/Article_1.pdf

Authors: 

Comments

Comment: 

Hello! I'm looking for evidence of a divorce between Reuben Hayes and Martha Jane Oates during the 1880s.

1880 they married in Randolph County.
Their 2 children born in Moore County (James Walter Hayes 1881, Nettie Alice Hayes 1884) according to their later records.

1886 Reuben married Dizie Jane Ussery in Montgomery County.
1897 Martha Jane Hayes married James W. Coggins in Moore County.

Of course, the Moore County Courthouse burned on September 5, 1889.

Would any record of a pre-fire divorce exist anywhere else in NC?

Thank you,
Betsy Miller

Comment: 

Hello, 

You would need to know which county they were divorced in. Moore County divorce records begin in 1887 and those records are located at the State Archvies of North Carolina. They can be contacted at https://archives.ncdcr.gov/researchers/services/ordering-copies. 

Erin Bradford, Government and Heritage Library

Comment: 

Hi - I'm looking to see if I can find any record of a divorce between my g-g-g-grandmother, Dicy Ann Andrews and her first husband Thomas S. Memory. They were married on the 5th (or 8th) of July, 1841 in Cumberland, NC. I believe she had a daughter and twin boys (one of whom is my g-g-grandfather) after they divorced/separated, but I'd like to find out for sure with some kind of record to cross him off of the list as a potential father. (They were listed in the 1850 census with Dicy Memory as HOH and a presumed last name of Memory for the children, and in subsequent censuses they are listed with the last name Parker. They used Parker for the rest of their lives. Parker father is still unknown to me.) Any information or guidance I can get would be greatly appreciated, thank you!

Comment: 

Hello Christina,

I am forwarding your question to our reference department. They will get back to you in a couple days with more information.

Best Wishes,

Christopher

Comment: 

Can you find any documentation of a 1800’s divorce of Henry Canon Smith and his first wife Dorcas Gore Smith?

Comment: 

Hello!

Need to know both county and time frame.

Erin Bradford, Government and Heritage Library

Comment: 

I am searching for NC divorce law in the 1890s. Under what conditions could a wife sue for a divorce on the grounds of desertion? How long did the husband have to be absent? I'm thinking my husband's grandfather, of Cleveland County, deserted his wife and family sometime between 1892 and 1897. In 1897 she remarried but later went back to the name of her first husband (my husband's grandfather who married two more times).

Comment: 

Hi Nancy,

Thanks for visiting NCpedia and sharing your question.  I have forwarded your question by email to Reference Services at the NC Government & Heritage Library.  A reference librarian will contact you shortly to help you with this question.

Best wishes,

Kelly Agan, NC Government & Heritage Library

Add a comment

PLEASE NOTE: NCpedia will not publish personal contact information in comments, questions, or responses. If you would like a reply by email, please note thats some email servers are blocked from accepting messages from outside email servers or domains. These often include student email addresses from public school email accounts. If you prefer not to leave an email address, check back at your NCpedia comment for a reply. Please allow one business day for replies from NCpedia. Complete guidelines are available at http://ncpedia.org/comments.