Cary, NC Separation Attorneys
Legal Separation Laws in NC & How to File
Learn More About Separation in North Carolina on Our Page:
What is Legal Separation & What is the Purpose?
According to North Carolina separation laws, 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 notarized, 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.
Qualifying for Separation in NC
Each state’s separation laws work differently and North Carolina
is no exception. To qualify for an absolute divorce in North Carolina,
you must be
legally separated for at least one year and a day. Legal separation occurs,
for the purposes of eligibility for divorce, on the date when one or both
spouses move into a separate residence with the intent of living apart
permanently. You do not need a separation agreement, nor do you have to
file any papers or documents to be separated in North Carolina. Having
a separation agreement alone does not create a legal separation.
Can You be Separated and Live in the Same House?
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 separation 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 a separation for purposes of eligibility for divorce
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.
Advantages of a Separation Agreement & Property Settlement
Many issues in a couple's legal separation and divorce can be resolved
through a Separation Agreement and Property Settlement. Only the actual
divorce cannot be granted because only a court can grant such an order.
For example, the agreement can allow the couple can 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 include property division including: cars,
jewelry, furniture, intangible property (such as stocks and bonds), vested
pensions, and life insurance. The agreement can also specify who will
pay what debts.
Unlike a property settlement, a separation agreement can only be made when
the parties have already separated or intend to separate immediately after
signing the agreement.
A Better 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.
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The most prominent advantage is
cost. Litigation can be costly and time-consuming, its outcome is also up to a judge.
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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.
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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?
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
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 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.
Our Cary divorce lawyers 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.
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.
But having a dating partner who stay overnight in the presence of your
children be grounds for denial of your custody or visitation.
Legal separation and dating in North Carolina may also have a serious negative
impact on the settlement negotiations between you and your spouse. It
may cause hurt and embarrassment for your spouse or incite feelings of
anger and resentment.
Is Sleeping With Someone While Separated Adultery?
When separated, North Carolina requires that each spouse lives "separate
and apart from one another". This means that they must live in a
separate residence, not a separate room or even the same complex. Is sleeping
with another person while separated considered adultery? It's a little
more complicated than a simple yes or no answer. While you are free to
date anyone while separated, if your spouse considers the intimate relationships
you are having as an issue, then they may file that as evidence of adultery
and it can impact issues such as alimony or child custody.
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 have been scheduled will be dropped from the court calendar.
Reconciliation After Separation in NC Family Law
Reconciliation occurs if at any time the spouses move back in together
or voluntarily renew the husband and wife 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 (See N.C. General Statute § 52-10.2),
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.
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.
