Filing for an uncontested divorce in Asheville can already feel like navigating a maze, but when your spouse lives out of state, it adds several layers of complexity. Fortunately, North Carolina law offers clear guidance for these situations, and with the right approach, you can move forward confidently. This guide explains everything you need to know—step-by-step—about filing an uncontested divorce in Asheville when your spouse resides in another state, including service of process, venue, and jurisdictional issues.
Residency Requirements for Filing in Asheville
Before initiating a divorce in North Carolina, it’s critical to determine whether the court has jurisdiction over your case. Jurisdiction depends heavily on residency.
To file for divorce in North Carolina, at least one of the spouses must have lived in the state for a minimum of six months prior to filing. If you live in Asheville, and you’ve been a North Carolina resident for at least six months, you meet the statutory requirement to file in Buncombe County.
It does not matter where your spouse resides, as long as you—the filing party—meet the state’s residency requirement.
Venue: Why Buncombe County is Appropriate
Venue determines which county you can file in. North Carolina law allows a divorce to be filed in the county where either party resides. Since you are filing from Asheville, Buncombe County is a proper venue.
If your spouse lives in another state, that state’s court system will generally not have jurisdiction over your divorce if you initiate it in North Carolina. Instead, North Carolina courts will control the proceedings, provided jurisdiction is proper.
Thus, you may file the complaint in the Buncombe County Civil District Court.
The 12-Month Separation Requirement Still Applies
Regardless of whether your spouse lives next door or across the country, the law requires that you and your spouse live separate and apart for one year with the intent of ending the marriage. You must also be physically separated—living in different residences—for the entire 12-month period.
This remains a non-negotiable prerequisite to divorce in North Carolina, even in uncontested filings.
Filing the Complaint
To start the uncontested divorce process in Asheville, you’ll file a Complaint for Absolute Divorce with the Clerk of Court in Buncombe County. The filing must include:
- A statement of your six-month residency in North Carolina
- A statement confirming the one-year separation
- A claim for absolute divorce
If your spouse is cooperative and agrees with all terms—such as the division of property, spousal support, and child custody (if applicable)—you may proceed with an uncontested action.
Once filed, the Clerk will assign a case number, and you’ll receive a summons that must be properly served on your spouse.
Jurisdiction Over the Spouse
Here’s where things get technical. Although the court may have jurisdiction over the marriage itself because you live in North Carolina, it may not have personal jurisdiction over your out-of-state spouse. This distinction matters for certain types of relief.
For instance, if you are only requesting a divorce and not seeking equitable distribution of assets, child support, or spousal support, the court does not need personal jurisdiction over your spouse.
But if you are asking the court to divide marital property, award alimony, or address custody or support, the court must have personal jurisdiction over your spouse.
North Carolina courts may obtain personal jurisdiction over an out-of-state spouse under the state’s “long-arm” statute if:
- The marriage took place in North Carolina;
- The parties lived in North Carolina as a married couple;
- The defendant has sufficient minimum contacts with North Carolina; or
- The defendant consents to jurisdiction.
In uncontested cases, many out-of-state spouses will simply agree to submit to North Carolina’s jurisdiction, which simplifies matters significantly.
Serving an Out-of-State Spouse
After filing your complaint, the next step is proper service of process. You must legally notify your spouse of the action. For out-of-state spouses, this can be done in the following ways:
1. Certified Mail (Return Receipt Requested)
This is the most straightforward method. You can mail the summons and complaint to your spouse using certified mail. If they sign the return receipt and it’s returned to you, this proves valid service.
2. Sheriff’s Service
You can also request the sheriff in your spouse’s county of residence to personally serve the documents. This often takes a little coordination but is effective and court-approved.
3. Private Process Server
If timing is critical, hiring a private process server in your spouse’s jurisdiction can be faster than using the sheriff’s office.
4. Service by Publication
If you don’t know your spouse’s current address despite diligent efforts, you may file a motion for service by publication. This involves publishing a legal notice in a newspaper near your spouse’s last known location for three consecutive weeks.
Service by publication can delay your divorce and is generally considered a last resort.
What If Your Spouse Refuses to Sign or Participate?
Even in uncontested divorces, it’s possible that your spouse might be uncooperative. However, your spouse does not need to sign any documents for the divorce to be finalized. If they are properly served and fail to respond within 30 days, the court may enter a default judgment in your favor.
In many uncontested cases, the spouse will simply sign a waiver of service or not respond, allowing the divorce to proceed without a court appearance from them.
Filing the Motion for Summary Judgment or Scheduling a Hearing
Once your spouse is served and the 30-day window passes, you may proceed to finalize the divorce. There are two main options:
1. Motion for Summary Judgment
If there are no contested issues and your paperwork is in order, you may file a Motion for Summary Judgment. This allows the judge to finalize your divorce without a hearing. You’ll submit an affidavit supporting your case and a proposed judgment for the judge’s signature.
2. Final Hearing
If you prefer—or if the judge requires—you may set a date for a brief court hearing. You’ll need to present evidence of residency, separation, and service, but the hearing usually lasts less than 10 minutes.
Either route results in a signed divorce decree, officially ending the marriage.
Property Division and Spousal Support Considerations
If your uncontested divorce includes agreements on equitable distribution, spousal support, or post-separation support, these terms must be documented carefully. The court can only approve these provisions if it has personal jurisdiction over both parties.
If your spouse resides out of state and does not consent to jurisdiction, these issues may need to be addressed separately through a consent agreement or filed in the spouse’s home state, depending on the facts.
However, many couples sign separation agreements before the divorce is filed. These agreements can include terms for:
- Division of property and debt
- Spousal support
- Child custody and visitation
- Child support
These documents, once notarized and executed by both parties, are legally binding in North Carolina and may be incorporated into the final divorce decree.
Out-of-State Spouse Signing a Separation Agreement
If you and your out-of-state spouse agree on all issues, a separation agreement can dramatically simplify the divorce. These agreements do not require court intervention unless you want them incorporated into the divorce judgment.
To ensure enforceability:
- Both parties must sign voluntarily
- Each signature must be notarized
- The agreement should be drafted with precision
Many couples choose to leave the agreement unincorporated, which means it remains a contract and is enforceable through civil court, not family court. If incorporated, it becomes part of the divorce judgment and enforceable through contempt proceedings.
Military Spouses and the Servicemembers Civil Relief Act (SCRA)
If your spouse is serving in the military and stationed out of state, additional federal protections apply. The SCRA allows military members to delay court proceedings while on active duty.
You must provide proof that your spouse is not on active duty or, if they are, that they waive their protections under the SCRA. A military affidavit must be filed along with your motion for summary judgment or hearing request.
Child Custody and Support Across State Lines
Child custody and child support in cases where one parent lives in another state involve special considerations under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA).
Generally:
- North Carolina must be the child’s “home state” for the court to make custody decisions
- Child support orders can be enforced across state lines through UIFSA
- Jurisdiction must be carefully assessed before including custody terms in your divorce filing
If your children live with you in Asheville and have for at least six months, North Carolina likely has jurisdiction to enter custody orders.
Cooperative Spouses: The Ideal Scenario
If your spouse agrees to the divorce and signs a waiver of service or accepts certified mail, the process becomes dramatically easier. A well-drafted separation agreement and an uncontested filing can lead to a quick, low-cost divorce.
You can even finalize the divorce without stepping foot in court by filing for summary judgment.
Uncontested Divorce Timeline When Your Spouse Lives Out of State
- Prepare Complaint and Summons
- File in Buncombe County (1-2 days)
- Serve Your Spouse (1-3 weeks, depending on method)
- Wait 30 days for response
- File for Summary Judgment or Schedule Hearing (1-2 weeks)
- Obtain Divorce Decree
In most cases, you can complete the process in 60–90 days after filing, assuming your spouse cooperates.
Final Divorce Decree
Once the judge signs your divorce judgment, the marriage is officially dissolved. If you’ve included a request to resume your prior name, it will also be included in the final order.
You should request a certified copy of the judgment from the Clerk’s Office, which you’ll need for name changes, financial accounts, and other legal matters.
Working With an Asheville Divorce Lawyer
While an uncontested divorce might seem simple, out-of-state service and jurisdictional rules can quickly complicate things. A qualified Asheville divorce lawyer can help:
- Ensure correct filing and service
- Draft or review a separation agreement
- Address personal jurisdiction challenges
- Finalize your divorce efficiently
An Asheville divorce lawyer can also help avoid costly mistakes that might delay your case or result in the court lacking jurisdiction to rule on key matters like support or custody.
FAQ
Can I get divorced in North Carolina if my spouse lives in another state?
Yes, as long as you meet the residency and separation requirements. Your spouse’s residence does not prevent you from filing in Buncombe County.
Do I need my spouse’s signature to finalize the divorce?
No. If your spouse is properly served and does not respond, the court can enter a default judgment.
Can I serve my out-of-state spouse by email?
No. North Carolina requires service by certified mail, sheriff, or private process server. Email is not a valid method of service.
What happens if I don’t know where my spouse is?
You can request to serve your spouse by publication after demonstrating a diligent effort to locate them.
Do I have to go to court?
Not necessarily. If your case qualifies, you may file a Motion for Summary Judgment and finalize the divorce without a hearing.
Can we divide property if my spouse lives out of state?
Only if the court has personal jurisdiction over your spouse, typically through consent or minimum contacts with North Carolina.
Can I include custody terms in my divorce if my spouse lives out of state?
Yes, but only if North Carolina has jurisdiction under the UCCJEA, typically based on the child’s residency.
What if my spouse is in the military?
You must comply with the SCRA and file a military affidavit. Your spouse may delay the proceedings unless they waive that right.
Do I need an attorney?
While not required, working with an Asheville divorce lawyer can ensure your divorce is filed correctly and efficiently resolved.
Can I change my name as part of the divorce?
Yes. You may request to resume your maiden name or prior surname in the divorce complaint or judgment.
The McKinney Law Group: Uncontested Divorce Lawyers in Asheville Offering Efficient, Affordable Solutions
If you and your spouse agree on the terms, an uncontested divorce can offer a faster and more cost-effective resolution. At The McKinney Law Group, we guide Asheville clients through the process with clarity and care.
Call 828-929-0642 or email [email protected] to schedule your consultation.