North Carolina Separation Attorney in Wake County
A couple may become physically separated when their marriage begins to fail. However, they are not deemed to be legally separated under North Carolina law unless one of the spouses obtains a “divorce from bed and board.”
A legal separation is not the same as an absolute divorce. Even if you are legally separated from your spouse, you will not be free to remarry. However, a legal separation can entitle you to receive many of the same incidents as an absolute divorce, including alimony, asset division, child custody, child support and attorney’s fees.
Steps to Obtain and Legal Separation in North Carolina
File the complaint
The legal paperwork, or the “complaint,” for obtaining a legal separation would be filed in the district court of the county where the couple – or at least one of them – lives. For instance, if you live in Raleigh or surrounding areas such as Cary or Wake Forest, you would file the complaint in Wake County District Court.
A spouse seeking a legal separation must show that the other spouse committed at least one of six acts, which would be stated in the legal complaint:
- Abandoned the family
- Threw the complaining spouse out
- Endangered the complaining spouse’s life
- Engaged in behavior that has made the complaining spouse’s condition “intolerable” and his or her life “burdensome”
- Uses alcohol or drugs excessively
- Committed adultery.
Present your case
In court, the spouse filing for separation would also have to show that he or she did nothing to provoke their spouse’s misconduct. The other spouse may also contest the complaint by demonstrating:
- The complaining spouse has forgiven such conduct in the past
- The complaining spouse has encouraged or enabled such conduct in the past, such as alcohol or drug use
- The spouse’s actions were in response to similar actions by the complaining spouse such as recrimination for an extramarital affair
- The allegations in the complaint are not true.
A spouse who is contesting a request for a legal separation may ask for the complaint to be heard before a jury.
Seek additional orders
Once you have obtained a legal separation, you may seek additional court orders for:
- Post-separation support and permanent alimony
- Asset division
- Child custody
- Child support.
Hire an experienced North Carolina divorce attorney
The lawyer you hire as your attorney protects you and your rights. Separation and divorce affect each spouse financially and emotionally, including issues involving child custody, child support and division of personal property. You will benefit from having a knowledgeable third party looking out for your interests from the start.
Seeking a Raleigh Separation Attorney
North Carolina is a no-fault divorce state. This means that you do not need to prove the other spouse was at fault in order to obtain an absolute divorce. Obtaining a legal separation, or divorce from bed and board, is a different matter. You must establish fault.
A court may grant a legal separation if you are able to establish one or more of the following fault-based grounds:
- Abandonment / turning out – When one spouse abandons the marriage or maliciously turns the other spouse out of the marital home. In some cases, a spouse may abandon the marital home due to the other spouse’s fault. If this is the case, then the abandoning spouse would actually be the one with grounds for a legal separation.
- Adultery – When there is evidence that one spouse is committing adultery. (Note that filing an alienation of affections claim against the person with whom the spouse is committing adultery may be a legal option to consider.)
- Cruel or barbarous treatment – When one spouse is physically violent, cruel or otherwise endangers the life of a spouse. (Note that filing a domestic violence action may be necessary in addition to seeking a divorce from bed and board when this ground exists.)
- Indignities – When one spouse simply makes life intolerable and burdensome for the other spouse by repeatedly abusing or humiliating the spouse or otherwise acting unreasonably.
- Alcohol / drug abuse – Similar to the indignities ground, this is when a spouse’s use of alcohol or drugs makes life intolerable and burdensome for the other spouse.
To file for a divorce from bed and board, one of the spouses must have been a North Carolina resident for at least months prior to bringing the action. In contrast to obtaining an absolute divorce, you do not need to be physically separated for at least one year before you file the action. Instead, it can be filed right away.
If you are seeking a legal separation, you should contact a Raleigh separation attorney right away. At Charles R. Ullman & Associates, we can take swift action to develop your case, file your claim and make sure your rights and interests are protected.
Defending Against a North Carolina Legal Separation
At Charles R. Ullman & Associates, we can also help you if you are the spouse contesting a divorce from bed and board. We can raise defenses that include:
- Recrimination – When one spouse’s faulty behavior is justified by the other spouse’s similar behavior (such as abandoning the house because of the other spouse’s drinking or drug use).
- Condonation – When one spouse forgives the other spouse’s faulty conduct (such as forgiving the spouse’s act of domestic violence).
- Connivance – When a spouse encourages the other spouse’s misconduct (such as enabling adultery or alcohol / drug abuse).
Keep in mind: Reconciliation is not a defense to a legal separation action. If the parties reconcile while a divorce from bed and board is pending, steps must be taken to dismiss the action.