Legal SEPARATION
What Is Legal Separation?
According to North Carolina law, the separation of a married couple takes
place when they move into separate residences with the intent to remain
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.
A separation agreement 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 is a legally binding contract once
properly executed, it is important to consult with an attorney to fully
protect your rights before doing so.
How to File for Legal Separation in NC
There is no requirement for a legal separation or written document in NC.
However, to be considered separate from your spouse, you must be living
in different homes, and at least one of you needs to intend the separation
to be permanent.
To qualify for an absolute divorce in North Carolina, you must be legally
separated for at least one year and one day. Legal separation occurs on
the date when one or both spouses move into a separate residence with
the intent of living apart permanently. In North Carolina, you do not
need a separation agreement to be legally separated, nor do you have to
file any papers or documents. Likewise, having a separation agreement
alone does not create a legal separation.
Can You Be Separated and Live in the Same House in North Carolina?
Generally speaking, no. In North Carolina, you cannot live in the same
residence and be legally separated.
A couple that “separates” but remains in the same home with
divided living areas takes a substantial risk that the presiding judge
will not accept this as a legally valid separation for the purposes of
granting a divorce; therefore, such “separate” living arrangements
are not advised. Separating couples should follow the general rule that,
for purposes of eligibility for divorce, separation requires that each
party reside under a separate roof at separate locations.
Living together while separated
In some rare cases, couples can be separated while living in the same home
if the residence has essentially been divided into two independent, unconnected
living units. This exception is very limited. It requires that the spouses
each live in a separate part of the home that is completely cut off from
the other and that there is no overlap or common area.
For example, each section of the house must have its own bedroom, bathroom,
kitchen, and entrance so there is no overlap between the units.
Separation Agreement and Property Settlement
Many issues in a couple's legal separation and divorce can be resolved
through a Separation Agreement and Property Settlement. For example, the
agreement can allow the couple to determine:
The obvious advantage of a Separation Agreement and Property Settlement
is that all these issues can be resolved without the need for costly litigation.
North Carolina is one of only a few states that allow spouses to keep property
agreements,
alimony agreements, and child support documents private. All separation agreements in North
Carolina must be notarized, and once they are notarized they can be enforced
as a contract in court. An oral agreement between spouses cannot be enforced
in court, so getting a separation agreement in notarized writing is strongly
suggested.
elements of a separation agreement
A separation agreement can contain any terms the parties agree to, as long
as they are not against public policy. Common terms include terms regarding
child support, child custody, and alimony.
The separation agreement can also divide property, including: cars, jewelry,
furniture, intangible property (such as stocks and bonds), vested pensions,
and life insurance. The agreement can also specify who will pay which debts.
A separation agreement can only be made when the parties have already separated
or intend to separate immediately after signing the agreement.
Alternative to 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 can be costly and time-consuming, its outcome is also up to
a judge. Worse yet are the
emotional costs in litigation. Months of litigation can strain the relationships between
family members who are already experiencing strain from the dissolution
of the marriage, making it even harder on children.
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, rather than leaving the decision
to a judge.
Do I Need an Attorney for Legal Separation?
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 should hire an attorney to handle your settlement negotiations if:
- Your relationship with your spouse is acrimonious.
- You are unsure as to your marital assets and their value.
- Your priorities and objectives are radically different from those of your spouse.
- You feel that you are at a disadvantage in negotiating with your spouse
for any reason
Plan ahead
Before meeting with an attorney to discuss an eventual separation from
your spouse, think about what your priorities and objectives. 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,
property division, and
absolute divorce—will be settled through court action.
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. Additionally, having a dating partner stay overnight in the presence of
your children could be grounds for denial of your custody or visitation.
Dating during separation may also have a serious negative impact on the
settlement negotiations between you and your spouse. It may cause hurt
and embarrassment or incite feelings of anger and resentment.
Is Sleeping With Someone While Separated Adultery?
No, at least not in and of itself. However, while you are free to date
while separated, if your spouse has accused you of being unfaithful during
the marriage, any post-separation intimate relationships you enter might
be considered corroborating evidence of adultery, and this could impact
issues such as alimony, alienation of affection, or criminal conversation.
Court-Ordered Separation
In most cases, separation occurs voluntarily, without involvement from
the court system. 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.
A divorce from bed and board can be granted based on one or more of the
following grounds:
- One spouse abandons the family.
- One spouse maliciously throws the other out of the marital residence.
- One spouse treats the other in a cruel and barbarous manner, which endangers
the innocent spouse’s life.
- One spouse offers indignities to the other, which render the innocent spouse’s
condition intolerable and life burdensome (including through the excessive
use of drugs or alcohol).
- One spouse commits adultery.
If the court finds that a spouse has committed one or more of these acts,
the offending spouse may be ordered to leave the marital home. However,
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 yet divorced can, at any time, change
their minds and reconcile. Lawsuits that have filed will be ended, and
hearings that have been scheduled will be dropped from the court calendar.
Reconciliation After Separation
Reconciliation occurs if, at any time after separation, the spouses move
back in together or voluntarily renew the marital relationship. If reconciliation
does occur, a new separation and one-year waiting period is required before
the parties may obtain a divorce.
While isolated instances of spending time together (or even isolated instances
of sexual conduct between the spouses) do not necessarily count as reconciliation
for legal purposes,
it is best to avoid these activities if you want to be sure to maintain your eligibility to file for a divorce
one year after the initial separation.
Choosing the Right North Carolina Separation Attorneys
Our attorneys at Montgomery Family Law have almost
70 years' experience in family law and have tried hundreds of cases on all issues involved
in family law, including legal separation in North Carolina. We have extensive
experience with North Carolina separation laws and can help navigate you
through the legal system.
To contact us, please call our divorce lawyers to handle legal separation
in Cary at
(919) 348-2317 or use our
online form.
