What is a Legal Separation in NC?
Proving legal separation is often a challenging task, particularly for individuals who are unfamiliar with the concept and the evidence necessary to verify their status. Legal separation in North Carolina may be granted in deed form to separate property and protect assets. For divorce to be granted, legal proceedings must be filed.
In North Carolina, both legal separation and divorce are governed under state laws. However, legal separation is an undefined term within state statutes. Instead, it is an accepted and well-established doctrine used to define circumstances under which judicial proceedings take place for the separation of spouses. Legal separation in North Carolina is essentially a state of living apart from the other spouse with the intention of living separately while still being married. The law requires two different actions be met to achieve legal separation: the spouses must live apart and have a determination over the intention to remain apart permanently. Like other states, North Carolina residents must live apart 12 months before filing for divorce .
While parties do not have to file a legal separation order in the state of North Carolina, it is also possible to voluntarily resolve differences through legal separation without having off-spousal rights determined by the court. In North Carolina, legal separation will often involve the following activities:
Parties that separate legally should have goals in place for staying apart or breaking the marriage. These parties are typically seeking time to aid in the process of healing the marriage through therapy and personal reflection. Many couples end up reconciling after 12 months of separation and have the potential to arise even stronger than before the breakup occurred. Others find that the time apart helped in developing the separation into a permanent rift.
Residents of North Carolina have two options for establishing legal separation: voluntary court action and private arrangement. It is possible for spouses to sign a document outlining the terms of the separation that indicate actions that address the above items. However, obtaining the necessary documentation often takes a long time to process and does not ensure sufficiency for divorce. On the other hand, spouses that agree to divorce regularly seek the quickest option for separation.
Legal Separation Requirements
The legal separation process in North Carolina encompasses the technical process of obtaining a "Divorce from Bed and Board," which is a Court Order granting Plaintiff the right to remain in the marital residence without interference from Defendant, and an agreement between the spouses that as of a certain date, they are no longer going to live together as husband and wife.
For a legal separation in North Carolina to be effective, there are two tangible requirements:
1. The husband or wife must move out of the marital residence; and
2. The husband or wife must be intending on making that separate residence permanent.
There must be no reasonable likelihood that you will reconcile your marriage.
There are no residency requirements. A person can file for divorce in North Carolina after living here for six months. But you must be physically separated from your spouse for one year (or more) to apply for a divorce decree. There is generally no waiting period for filing a claim for legal separation in North Carolina. However, it is not uncommon for people to file for a legal separation and divorce at the same time since the legal separation seals the marital property and debt in place, making it easier to divide.
There are no special documents that must be filed specifically for legal separation in North Carolina. Physical separation along with an express statement or some other method of communicating the physical separation to others is all it takes to obtain a legal separation. Often times, the parties have no idea that they are legally separated until they receive an Order from a Court stating that they are separated. However, divorce lawyers typically don’t seek to have their clients declared legally separated (even though in practice the Supreme Court of North Carolina has ruled that there is no such thing as a legal separation in North Carolina). It is commonly understood that the legal separation is a formality that stops the oppressive nature of the "marital estate" from scene. It allows for freedom related to finances and provides for one party to maintain residence at the marital home. Once a Divorce from Bed and Board is entered, the parties are legally separated.
Proving the Separation
To prove the separation and the date of separation, you can give a copy of your signed Separation Agreement. It is important that the Agreement have both your signatures on the same document.
Second, a safe deposit key may be good evidence. If the account has been closed, the bank will often give you a statement showing its closing date. Sometimes, it takes a judicial order to try to get this information from a financial institution. For this reason, some people create a custody order, or a domestic violence protective order, to expedite the production of a bank record.
Third, evidence of the opening of a separate checking account would also be helpful. If your spouse used a credit card during the separation period, then that record may also be helpful to show that the parties were acting like they were separate and apart.
Fourth, you should have your own vehicle with no joint title. Otherwise, it is possible that a court could say you cohabited by living in your spouse’s vehicle. By the same token, you should not live in your spouse’s mother’s house.
To say that you are separated and to be separated legally are two different things. You should have proof to show your separation.
Requirements of a Separation Agreement
Separation Agreements are employed in every state in the union as well, but only to prove an informal separation before filing, or in a divorce action, or to resolve other issues of law such as child support and custody, property division, etc. Here in North Carolina, a Separation Agreement is an extremely important document that is often the final word on all the terms of a separation. It can be used to prove to a court that you have been separated at least one year when you file for Absolute Divorce, and it may also be employed by your divorce attorney in a motion seeking spousal support, child support, spousal support, or equitable distribution.
A Separation Agreement is a written contract between a husband and wife that cannot be breached by either without cost of negotiation or contest before a judge. A Separation Agreement requires a sworn statement of the reasons for the separation, provisions for child custody and support, equitable distribution of marital assets such as furniture, cars, real estate, bank accounts, pension plans, retirement funds, military benefits, and an allocation of responsibility for joint debts and liabilities. The Separation Agreement, written by an attorney for one of the spouses (and reviewed by the other and signed by both) becomes the final word on all issues when it is filed with the Clerk of Court or researched by a prospective husband and wife, unless amended later on through mutual agreement, or by court order.
Living Separate and Apart
In addition to living separate and apart, you must also be physically separated from your spouse at the time of filing. The mere fact that parties live at different addresses is not sufficient proof to establish that the parties have in fact been living separate and apart. Evans v. Evans, 261 N.C. 113, 134 S.E.2d 195 (1963) (holding parties had not in fact lived separate and apart when they returned back to the marital home together after a trip of five days). Your separation must be at some point away from the marital residence. You must be separated in some verifiable way. – to provide consistency in enforcement of reconciliations and insurance coverage , consolidating the period of statutorily required separation, and to reduce the financial impact on courts and the public. In interpreting the statutory requirement that parties live separate and apart for a year, the general assembly has determined that it embodies a mandate as to conduct that requires the parties to reduce inconsistent claims of reconciliation after one of the spouse leaves. Knott v. Knott, 198 N.C. App. 632, 681 S.E.2d 442 (2009). There is no particular rule defining where a spouse must reside, but a spouse must actually reside somewhere independently of the other spouse. Rechtman v. Rechtman, 43 N.C.App. 346, 348 (1980).
When to Get a Lawyer
While a legal separation in North Carolina is not a requirement for obtaining or seeking a divorce, there are certain circumstances when its helpful to consult with an attorney. The best case scenario is for both spouses to agree on terms of the separation and then get that agreement written into a separation agreement so that someone has a document that can be enforced in court should that action become necessary. If a spouse refuses to cooperate, a simple separation agreement is not likely an option. When spouses cannot agree about any of the terms of the separation then a spouse is well-advised to consult with a family law attorney. It may be an advantage to have someone outside the situation to discuss how best to make a clean break rather than continuing to share the dog or the children equal time, which many times happens. Also, if the separating couple has problems with where their spouse is living, or whether that spouse will pay child support, alimony or for marital debts, or when marital property will be divided, there probably needs to be a more formal legal intervention. Early legal intervention may make things easier down the road to settle a divorce proceeding but in all likelihood, if one spouse gets an attorney, the other spouse will need an attorney in the end.
Typical Obstacles to Proving the Separation
Common Challenges in Proving Legal Separation
One of the most challenging aspects of proving a legal separation is establishing the specific time periods during which the spouses lived apart. With most events in life, you have a start date and an end date. In the case of separation, however, you typically have no definitive end date as the separation continues until the parties are reconciled or divorced. An end date, however, may be necessary for purposes of property distribution, alimony, child support and equitable division.
How Can You Prove Separation?
As outlined above, the two factors required to prove legal separation in North Carolina are (1) spouse moves into separate residence and (2) spouses intend to live separate and apart.
As for date of separation, a couple must have lived separate and apart for a year before a divorce may be obtained in North Carolina. The legal separation date is the date upon which one spouse vacates the marital home or takes steps to establish a residence elsewhere with the intent to separate. Therefore, you will need to provide some evidence of when exactly the spouses resided in separate domiciles.
How do you prove these dates? One possible way to prove the date of separation is to identify the date on which you filed a complaint for absolute divorce or an equitable distribution action against the other spouse. Your attorney will review the paperwork via the clerk’s office to determine the date on which you signed the complaint for divorce or equitable distribution. In most cases, the date you and your spouse physically separate will be the same day as the date of filing the paperwork; however, in some circumstances there can be a period of time that transpires between the date the spouses separate and the date of filing a complaint for divorce or equitable distribution.
In addition to the date of filing a complaint, the date of filing for separate maintenance also qualifies as a date of separation. Obtaining a separate maintenance occurs when one spouse files a lawsuit to obtain an order that will award spousal support. A spouse seeking to obtain an order of separate maintenance can file the paperwork that includes a request for child custody and support, alimony, equitable distribution of the couple’s marital assets, and the possession and use of the marital residence. A spouse can file for separate maintenance even if a spouse does not currently reside separate and apart from the other spouse.
North Carolina courts also recognize the date upon which a dependent spouse becomes independent as the date of separation. The dependent spouse must have an actual support system in place to provide for his or her basic needs, which includes food, clothing, housing and health care.
NC Legal Separation FAQs
My spouse and I have decided to live apart. What does it mean to be legally separated in North Carolina? If you are physically living apart from your spouse with the intention of remaining that way until you are divorced, then you are legally separated. More than just physical separation is required, however, if you wish to be eligible for a divorce in NC on the grounds of one year’s separation. You must also intend for the separation to be permanent. This means you cannot be making plans or attempting to reconcile your marriage.
Do you have to file anything to be legally separated in North Carolina? No. All that is required is to physically separate yourself from your spouse and have the intent to stay separate. As long as you have lived separate and apart continuously for one year, you will be eligible for a divorce after filing for it in the appropriate county.
Are there any requirements for property division when you are legally separated in North Carolina? When the date of your separation is established , that date is essentially your "cut off" date for purposes of determining when property acquired after that date is separate property belonging to either you or your spouse. If you are the primary income earner in a family business, however, it is generally prudent to document the value of the business as of the day immediately preceding your separation. If you wait too long and the value of the business increases while you are living separate and apart, your spouse may have the right to claim an interest in that increase in value.
Can you "date" while you are legally separated in North Carolina? The law does not prohibit persons who are legally separated from their spouses from dating others, but this can be a very complicated issue in the context of a divorce. If you plan to date while separated, you should be very careful about the optics for your spouse and their relationships. If you do not want your spouse to introduce this evidence during your divorce proceeding, you need to keep that in mind when choosing your friends and dating partners. It is also worth noting that in an aliention of affection lawsuit, dating while separated has been found to provide the requisite "intent" to alienate a spouse’s affections.
