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Montgomery Family Law
Divorce & Family Law

NC Separation Laws & Agreements

Legal Separation in North Carolina: The Separation Agreement and Property Settlement Contract

In North Carolina, the separation of a married couple takes place when they move into separate residences with the intent of living separate and apart. It is advisable for a couple contemplating legal separation in North Carolina to consult with their attorneys prior to their actual separation for the purpose of drafting a Separation Agreement and Property Settlement. This is a written contract between the spouses and can cover all or some of the issues involved in their separation and eventual divorce. And because a Separation Agreement and Property Settlement is a legally binding contract once it is signed by both spouses and notorized, it is important to consult with an attorney to fully understand your rights under NC statutes and separation laws before entering into any such contract.

Separation Agreements & Property Settlements

All issues surrounding a couple's legal separation and divorce can be resolved through a Separation Agreement and Property Settlement with the exception of the couple's actual divorce, which can only be granted by a court. For example, the couple can determine how their marital property is to be divided, the amount and duration of spousal and child support, and the child custody schedule the parents will follow. The obvious advantage of a Separation Agreement and Property Settlement is that all these issues can be resolved without the need for costly litigation.

There are pronounced advantages to settling the issues surrounding separation and divorce through a Separation Agreement and Property Settlement rather than litigating those issues. The most prominent advantage is cost. Litigation is expensive, time consuming, and its outcome uncertain. During separation and divorce, a family's finances are stretched thin to support two households when during the marriage there was only one household to support. Worse yet are the emotional costs exacted in litigation. Months of adversarial litigation can exacerbate the personal relationships between immediate and extended family members already under severe strain from the break-up of the couple's marriage. This is a particularly difficult period for the children involved regardless of their ages.

Another advantage to the settlement of issues through a Separation Agreement and Property Settlement is that the couple remains in control of the negotiations and ultimate outcome. It should be remembered that at the end of a trial, it is the judge who makes the final decision governing very telling and important aspects of the couple's lives and the lives of their children. In sharp contrast, the parties to a contract, such as a Separation Agreement and Property Settlement, negotiate and mutually agree to its terms and in the end their contract is tailor-made to fit their priorities and needs.

In some cases a married couple can handle their settlement negotiations between themselves and need an attorney only at the beginning to fully understand their rights and at the tail-end to properly draft their Separation Agreement and Property Settlement. This is true where the couple is like-minded and their relationship remains open, amicable and even-handed.

In most cases, however, married couples on the verge of legal separation will need their individual attorneys to handle their settlement negotiations. You should understand that an attorney is bound by the legal profession's code of ethics to represent and advocate for the best interests of a single party. The wife's attorney, for example, cannot serve as the legal counsel for the husband since it is presumed that each spouse's interests are different and conflicting. You are advised to hire an attorney to handle your settlement negotiations if your relationship with your spouse is acrimonious, if you are ill-informed as to your marital assets and their value, if your priorities and objectives are radically different from those of your spouse, or if you feel that you at a disadvantage in negotiating with your spouse for whatever reason.

Before meeting with an attorney to discuss an eventual separation from your spouse, you should give careful thought to what your priorities and objectives are. For example, do you want primary custody of your children and ownership of the marital home and its furnishings to provide some continuity for your children? Are you concerned about your future financial security upon your retirement and therefore looking for a substantial share of your spouse's retirement accounts? If your children are near college-age, do you want marital assets converted to a trust fund to cover their college education?

If you and your spouse are unable to settle, then the issues pertinent to your case - child custody and support, spousal support in the form of post-separation support and alimony, divorce from bed and board (discussed below), property division and absolute divorce - will be settled through court action. Montgomery Family Law has over 35 years' experience in family law and have tried hundreds of cases on all issues involved in family law, including legal separation in North Carolina.

Should I Date During A Separation?

On the issue of whether a spouse should date after separation and before divorce, you should understand that post-separation dating can be used as evidence of adultery occurring during the marriage. If there was no illicit sexual conduct before your date of separation, then post-separation dating is not relevant to a claim for post-separation support or alimony. However, a paramour who stays overnight when your children are present can be grounds for denial of your custody or visitation. You should be forewarned that you will likely be asked under oath at a deposition or at trial about any dating or romantic relationships. To answer these questions falsely would constitute perjury. You may plead the Fifth Amendment privilege against self-incrimination under certain limited circumstances. Dating after separation and before divorce may also have a serious negative impact on the settlement negotiations between you and your spouse. At best, your infidelity can cause your spouse hurt and embarrassment. At worst, it will provoke feelings of anger and revenge, which will greatly complicate your settlement negotiations with your spouse.

Also, your spouse might file an action for "alienation of affections" or "criminal conversation" seeking substantial money damages against your paramour based upon his or her sexual intercourse with you or interference with the marital relationship between you and your spouse before the date of separation Conversely, if your spouse is engaging in extra-marital affairs, then you are the wronged spouse and are in the position of filing an alienation of affections or criminal conversation lawsuit against your spouse's paramour. If that is the case, you are well-advised to obtain proof of his or her affair through a private detective.

Court-Ordered Separation

In most cases, a spouse voluntarily separates from his or her spouse; however, there are cases where the court orders the legal separation of a married couple. This is called divorce from bed and board. Divorce from bed and board is not an absolute divorce. The married couple remains legally married to each other, albeit ordered by the court to live separate and apart from each other. A divorce from bed and board is granted based on one or more of the following grounds:

  • One spouse abandoning the family;
  • One spouse maliciously turning the other spouse out-of-doors;
  • One spouse treating the other spouse in a cruel and barbarous manner, endangering his or her life;
  • One spouse offering indignities to the person of the other spouse to such an extent as to render his or her condition intolerable and his or her life burdensome;
  • One spouse using drugs or alcohol in excess; and
  • One spouse committing adultery.

If the court finds that a spouse has committed one or more of these acts, the offended spouse may be ordered to leave the marital home. Divorce from bed and board is not commonly granted. It should also be noted that if you are granted a divorce from bed and board, you lose all the automatic inheritance rights that exist by virtue of your marriage.

Spouses who have separated but not divorced can, at any time, change their minds and reconcile. Lawsuits that have filed will be ended and hearings that has been scheduled will be dropped from the court calendar.

If you need help with you separation, contact Montgomery Law today. We have extensive experience with North Carolina separation laws and can help navigate you through the legal system. To contact us, please call or use the form to your right.