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:

• How their marital property is to be divided.
• The amount and duration of spousal and child support.
• 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.

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.