Divorce vs. Legal Separation in NC; which is better?

What is the difference between absolute divorce and legal separation in North Carolina? The former concludes in a final judgment dissolving the marriage, while the latter can usually be reversed simply by entering into a new agreement with your spouse and/or resuming living together as a married couple.

In order to obtain a divorce in North Carolina, the parties must be separated for a period of at least one year prior to applying to the court for a divorce. A married couple in North Carolina is considered “legally separated” by the court at the time at which the parties move into separate residences with at least one spouse having the intention to remain separated indefinitely. During the period of separation and before the entry of a divorce, the parties may enter into agreements about the division of their property, spousal support, child support, and child custody. There is no requirement that either party actually proceed with a divorce after one year. However, one spouse cannot prevent the other spouse from seeking a divorce, so long as the minimum separation period of one year has been satisfied.

A “legal separation” in North Carolina is different than in other states. In North Carolina, it is relatively rare to seek an actual decree of legal separation from the court at the time that one spouse moves out. In order to do so, one must prove marital fault on the part of the other spouse. (See : Court-Ordered Separation) However, it is possible to achieve a “legal separation” through the negotiation of a separation agreement.

A separation agreement is a private contract (not submitted to the court) between spouses where spouses agree that they will live separate and apart. In such a contract, the spouses would typically also agree to a division of their property, debts, and spousal support. Spouses might also agree to child custody and child support in a separation agreement.

Alternatively, it is often advisable to incorporate custody and child support terms into an agreement that is submitted for approval by the presiding family court judge. Once entered by the judge, such agreement is called a “Consent Court Order.”

A legal separation established by a contract where the parties agree to live separate and apart, but not necessarily to ever divorce, can usually be reversed simply upon an actual resumption of the marital relationship. Typically, such separation agreement would contain language stating that the agreement becomes void as to any terms not already carried out, if the parties resume living together as a married couple. It is important that such agreements be carefully drafted, because the effect of a separation agreement, particularly as to what would happen in the event of reconciliation, can vary widely depending on the actual terms and language of the contract.

Here are a few of the more common reasons couples choose to remain legally separated over getting divorced:

  • Religion: Some couples may choose to live separate lives yet will not divorce on moral or religious grounds. In this scenario, legal separation is a viable alternative so long as neither party wishes to remarry.
  • Children: The inevitable lifestyle changes that come with divorce can be particularly difficult on children. Some couples choose to separate and delay the actual divorce action until their children are mentally prepared for the change or have left the home.
  • Time & Perspective: For those unsure of divorce, a legal separation gives both parties some space, time to think, and a taste of independent life once again. Spouses can change their minds at any time while they are legally separated. A separation can provide the clarity needed to help make a final decision as to whether to divorce or attempt reconciliation.

N.C. Gen. Stat. § 52-10.1 provides for the execution of a separation agreement. In any of the above instances, such an agreement can clarify child custody and support issues, division of property, responsibility for marital debts, and spousal support obligations.

In North Carolina, divorce may be a better option for those who know that reconciliation is neither likely nor desirable upon completion of the first year of separation. Here are a couple of common reasons why divorce may be the preferred option to an indefinite legal separation in North Carolina:

  • Certainty: In cases where both parties are resolute in their desire to start over, divorce may be a preferable option to a long-term legal separation.
  • A Desire to Date or Remarry: If either party wishes to remarry, a divorce will be required. Additionally, a dating relationship may influence a judge’s custody award if one parent allows a paramour to stay overnight while the children are in that parent’s custody.

In any event, a physical separation of at least one year is required before either spouse can file for a divorce. However, some individuals may wish to remain legally separated and never actually divorce. If you wish to be legally separated from your spouse, a separation agreement may be a good option. Should you require assistance with a separation agreement, divorce action, or simply need an informed opinion on which option may be best for you, an experienced family law attorney can be an invaluable asset.

Choosing between separation and divorce in North Carolina can involve complex legal questions. While friends and family will offer their opinions, this is a highly personal decision and every situation is unique. Take the time to learn the advantages and disadvantages of each. The more informed your decision, the better your prospects are for a favorable outcome.

The Cary family law attorneys at Montgomery Family Law are here to help and ready to put their many years of experience and sound judgment to work for you.

Contact us today at (919) 348-2317 to schedule an initial consultation.