Filing for an uncontested divorce in Asheville is often seen as the most straightforward and amicable path to legally ending a marriage. Both parties agree to the terms, file the appropriate documents, and the court signs off. But what if one spouse doesn’t respond after being served with the divorce paperwork? Does the case stall, or does it move forward?
In North Carolina, when a spouse fails to respond to a properly served uncontested divorce filing, the process doesn’t stop—it simply shifts from a traditional uncontested divorce to what’s known as an “uncontested-by-default” divorce. This blog will walk through what that means, how the court handles it, and what steps must be taken by the filing party to successfully obtain a final judgment.
Understanding Uncontested Divorce in Asheville
An uncontested divorce is one where both spouses agree that the marriage is over and neither party is disputing the divorce. The agreement often includes terms for:
- Property division
- Spousal support (if any)
- Child custody and support (if applicable)
But even if all terms are agreed upon, North Carolina requires the defendant spouse to be formally notified (served) and given the opportunity to respond. If they do not file an Answer or otherwise respond within the legal deadline, the court may proceed without them through default judgment.
Initiating an Uncontested Divorce Filing in Asheville
To begin an uncontested divorce in Asheville, the plaintiff (the filing spouse) must first meet several requirements:
- Residency Requirement
One spouse must have lived in North Carolina for at least six months before filing. - Separation Requirement
The spouses must have lived separate and apart for at least 12 consecutive months prior to filing. - Filing the Complaint
The plaintiff files a Complaint for Absolute Divorce in the Buncombe County Civil District Court, along with a Civil Summons and any other necessary documents. - Service of Process
The defendant spouse must be served with the Summons and Complaint through one of the following methods:- Certified mail (return receipt requested)
- Sheriff’s service
- Private process server
- Publication (only when the defendant cannot be located)
Once served, the defendant has 30 days to respond, with the possibility of an extension upon request.
What If the Defendant Doesn’t Respond?
If the defendant spouse doesn’t respond within 30 days of being served—and no extension is requested—then the plaintiff may proceed with requesting a default judgment.
This is the critical turning point where the case shifts from a mutually agreed-upon uncontested divorce to an uncontested-by-default case.
Default Divorce: What It Means in North Carolina
A default divorce is granted when one party fails to respond to a divorce complaint. This does not mean the court skips the usual requirements; it simply allows the plaintiff to move forward without the other party’s participation.
In Asheville, once the 30-day window has passed with no response, the plaintiff may:
- File a Motion for Entry of Default
- Submit a supporting affidavit or verification
- Request a court date (if required)
- File a Motion for Summary Judgment or schedule a hearing
Filing a Motion for Entry of Default
To continue the process, the first step is obtaining an Entry of Default. This document is issued by the Clerk of Court and confirms that the defendant failed to respond within the allowable time frame.
Required Documents:
- Motion for Entry of Default
- Affidavit of Service showing how and when the defendant was served
- Affidavit of Default verifying that no answer or motion has been filed
- Proposed Entry of Default for the Clerk’s signature
Once the Clerk signs the Entry of Default, it becomes part of the record and allows the plaintiff to move forward toward final judgment.
Motion for Summary Judgment in Uncontested-by-Default Cases
In many uncontested-by-default cases, the plaintiff may still pursue a Motion for Summary Judgment rather than a live hearing. This allows the judge to review all submitted documentation and, if satisfied, issue a final divorce decree without either party appearing in court.
Documents typically include:
- Motion for Summary Judgment
- Affidavit of Separation confirming the date of separation and the intention to end the marriage
- Copy of the Complaint
- Affidavit of Service
- Entry of Default
- Military Affidavit confirming the defendant is not on active duty
- Judgment for Absolute Divorce (proposed order)
Once the judge reviews and signs the judgment, the divorce becomes final.
Live Hearing Instead of Summary Judgment
Some cases may require a live hearing. While Buncombe County courts often accept summary judgment filings for uncontested divorces, the court retains discretion to schedule a hearing, particularly if:
- The documentation is incomplete or ambiguous
- The plaintiff requests a hearing
- The court has questions regarding jurisdiction or service
At the hearing, the plaintiff will be asked to affirm basic facts, including:
- Residency
- Date of marriage and separation
- Intent to remain separated
- Proper service of the complaint
The hearing typically takes less than 15 minutes, and if everything is in order, the judge will grant the divorce that day.
Jurisdictional Considerations in Default Cases
Even in default proceedings, the court must have proper jurisdiction to issue a binding judgment. For a North Carolina court to grant a divorce, the following must be true:
- At least one spouse has lived in North Carolina for six months
- The marriage was legally valid
- The spouses have lived apart for one year
While personal jurisdiction over the defendant is not strictly required for granting a divorce, it is required for the court to address related matters such as:
- Alimony
- Equitable distribution of property
- Child custody and child support (if the children do not reside in North Carolina)
If the court lacks jurisdiction over the defendant, it cannot rule on those matters even in a default case.
Military Spouses and the Servicemembers Civil Relief Act (SCRA)
If the defendant spouse is a member of the military, additional rules apply. Under the SCRA, courts must ensure that active-duty service members are not unfairly held in default due to their military service.
Before a default judgment can be entered, the plaintiff must file a Military Affidavit certifying whether the defendant is in military service. If they are, the court may require additional notice or delay the proceedings unless the defendant waives their rights under the SCRA.
What If the Defendant Shows Up Later?
In some cases, the defendant may attempt to set aside a default judgment after the fact. Under Rule 60 of the North Carolina Rules of Civil Procedure, a party may file a Motion to Set Aside a Default Judgment for specific reasons, such as:
- Mistake or excusable neglect
- Newly discovered evidence
- Fraud or misconduct
- Lack of proper service
These motions must be filed within a reasonable time and meet strict criteria. The longer the delay, the less likely the court is to set aside the judgment.
Property and Financial Issues in Default Cases
If your divorce includes claims for equitable distribution, post-separation support, or alimony, the court can only address them if it has personal jurisdiction over your spouse.
Even if the spouse defaults, the court cannot enter rulings on these matters unless:
- Your spouse had sufficient contact with North Carolina
- Your spouse was served properly and did not respond
- The court deems it has personal jurisdiction
To pursue property or support claims, be sure to:
- Include these claims in your original Complaint
- File a Motion for Entry of Default that references these claims
- Provide affidavits or other evidence to support the requested relief
If no property or financial claims are made—or the court lacks jurisdiction over the defendant—the court may grant the divorce only, and the parties will need to resolve financial matters separately.
Child Custody and Support in Default Scenarios
If children are involved and you seek custody or child support in the divorce, jurisdiction becomes critical. Under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), North Carolina must be the child’s home state for the court to issue custody orders.
If the court has both subject matter and personal jurisdiction, and the defendant fails to respond, the plaintiff may still request custody orders. The court will review evidence, including:
- The child’s residence for the past six months
- Parental roles and involvement
- Financial need for support
But if jurisdiction is lacking—such as when the child lives out of state with the defendant—custody and support may need to be handled in a separate proceeding where the child resides.
How Long Does a Default Divorce Take in Asheville?
Every case is different, but a typical timeline for an uncontested-by-default divorce in Asheville is as follows:
- Filing the Complaint – Day 1
- Service of Process – Days 1–30
- 30-Day Waiting Period – Days 30–60
- File Motion for Entry of Default – Around Day 60
- File for Summary Judgment or Request Hearing – Days 60–75
- Final Judgment Entered – Days 75–90
Most default divorces are finalized within 60 to 90 days, provided there are no complications with service, military status, or jurisdiction.
Tips for Managing a Divorce Where Your Spouse Doesn’t Respond
- Use certified mail with return receipt to create a clear record of service.
- File your Motion for Entry of Default promptly after the 30-day window expires.
- Double-check jurisdictional issues if you want the court to rule on support, custody, or property.
- Keep organized records of all filed documents, service confirmations, and correspondence.
- Consult with an Asheville divorce lawyer if you’re unsure about any part of the process.
Working with an Asheville Divorce Lawyer in a Default Case
Even if your spouse ignores the divorce filing, the process is not automatic. You must still complete every required step and submit proper documentation. Mistakes in service, paperwork, or jurisdiction can delay your case or result in the dismissal of your claims.
An experienced Asheville divorce lawyer can ensure:
- The complaint is drafted properly
- Your spouse is served in accordance with state law
- Default procedures are followed precisely
- Final judgment includes all appropriate relief
FAQ
What happens if my spouse doesn’t respond to the divorce papers?
If your spouse fails to respond within 30 days of being served, you may request an Entry of Default and move forward with the case without their participation.
Do I still need a court hearing if my spouse doesn’t respond?
Not always. If you file a Motion for Summary Judgment and the court is satisfied with the documentation, the judge may finalize the divorce without a hearing.
Can the court divide property if my spouse doesn’t respond?
Only if the court has personal jurisdiction over your spouse and you included property division in your original complaint.
What if my spouse is in the military and doesn’t respond?
You’ll need to file a Military Affidavit, and the court may delay the proceedings under the Servicemembers Civil Relief Act unless your spouse waives those protections.
How do I know if my spouse was properly served?
Proof of service is required. If you used certified mail, you’ll need the signed green return receipt. If you used a sheriff or process server, you’ll need their affidavit.
Can my spouse stop the divorce after a default judgment is entered?
Only under limited circumstances by filing a motion to set aside the judgment. The court will require a valid legal reason and prompt action.
Is the divorce final even if my spouse never signs anything?
Yes. As long as they were properly served and failed to respond, the judge can finalize the divorce.
Can I include a name change in a default divorce?
Yes. If you request it in your complaint, the judge may grant a name change as part of the final divorce decree.
What if my spouse contacts the court after the default is entered?
They may request to set aside the default judgment, but they must show good cause. The court will evaluate the request carefully.
Do I need an attorney if my spouse doesn’t respond?
It’s not required, but working with an Asheville divorce lawyer can ensure all procedural rules are followed and reduce the risk of errors or delays.
The McKinney Law Group: Streamlined Uncontested Divorce Services for Asheville Residents
Uncontested divorce doesn’t mean you have to do it alone. We help Asheville clients navigate paperwork, court requirements, and settlement terms—all with the goal of a smooth, respectful separation.
Reach out at 828-929-0642 or email [email protected] to get started.