Common Questions About Legal Separation in NC

legal separation in nc

If you are experiencing serious problems in your marriage, you may be considering legal separation from your spouse. If that’s the case, you’ll require experienced legal counsel to help you protect your rights and assets throughout every step of the legal process.

Here are the answers to some common questions about legal separation in North Carolina. Contact Charles R. Ullman & Associates now for specific answers to your individual questions.

Do I need to be legally separated from my spouse in order to get a divorce in North Carolina?

No, you do not need to be legally separated to obtain a North Carolina divorce. Still, you need to make sure that you meet the legal definition of “separation.” State law mandates that you and your spouse must actually live separate and apart for at least one year before you are eligible to file for divorce. If you live in separate areas of the same house, this does not satisfy the requirement. If you live in separate houses but maintain the appearance of a relationship, this will not satisfy the requirement either. Additionally, if you reconcile with your spouse, the separation period ends. Isolated sexual intercourse with your spouse is not considered reconciliation. However, if you move in together, go out in public together and have regular sexual intercourse, it would likely be considered reconciliation.

How is a legal separation different from divorce?

First, a legal separation does not end your marriage. You cannot remarry if you are legally separated but not divorced. A legal separation allows you to remain married but live separately until either you either reconcile or file for divorce. Second, fault plays a different role. In North Carolina, neither spouse needs to be held at fault for a couple to get divorced. To obtain a legal separation, however, the person who files must provide information establishing that his or her spouse was at fault. Third, you can file for a legal separation as soon as you want, whereas for a no-fault divorce the parties must have been physically separated for at least a year.

How do I obtain a legal separation?

You or your spouse must be a resident of the state to file for separation in North Carolina. First, you’ll need to file the complaint paperwork with the district court of the county where you or you and your spouse live. Then you’ll need to gather all of the necessary evidence and build a case to establish your spouse’s fault. An experienced lawyer can help you do this. In court, you and your attorney will present your case, and the court will decide whether to grant a legal separation. Then you may obtain separate orders regarding matters such as alimony, child support, custody and visitation.

What constitutes fault in a legal separation?

Fault generally falls under one of the following categories: abandonment/turning out, adultery, cruel or barbarous treatment, indignities, or alcohol/drug abuse. Some of these may involve further legal action in addition to the separation. For example, in the case of domestic violence, (cruel or barbarous treatment), you may need to file a specific domestic violence action and obtain a restraining order for your own protection. Those at risk of being a victim of domestic violence should get this court order at once.

What if my spouse unfairly claims that I’m at fault?

If your spouse has filed for legal separation from you, but you believe you were not at fault, you should consult with an experienced lawyer. An attorney can help you defend against false accusations. For example, your actions may have been in reaction to your spouse’s bad behavior, your spouse may have already forgiven you for your actions or your spouse may have encouraged your actions. In these cases, you should not be penalized.

What will happen to our children in case of a legal separation?

A legal separation agreement will include a plan regarding the custody and care of the couple’s children. The agreement will spell out legal and physical custody, visitation, child support and how vacation times will be shared between the parents. The terms of that agreement must serve the best interests of the children above all, and can later be modified if there is proof that the current agreement does not do so. The welfare of children is the guiding factor in North Carolina custody agreements.

Can I date another person while I am separated from my spouse and a divorce is pending?

Yes, you can have a relationship with another person while you are separated and waiting on your divorce to be final. But there are practical and legal considerations to keep in mind. After becoming separated and deciding on a divorce, you and your spouse may have entered into negotiations about a separation agreement. However, your spouse could become bitter if they learn that you have already started another relationship before the divorce decree is entered. This could create hostility and complicate negotiations on matters such as alimony or custody. There is also an important legal consideration. It is not against the law to date another person while still married. However, adultery does constitute a crime – actually, a Class 2 misdemeanor – under North Carolina law. (Many people are surprised to learn about this law).

What happens if we reconcile after getting a legal separation?

Many couples, often with the help of mediation or counseling, make a decision to preserve their marriage. Since a legal separation does not definitively end the marriage, reconciliation is always an option. In fact, the separation agreement should specify what will happen if the couple no longer wants to be separated. Separation agreements and lawsuits may be rescinded if you and your spouse so choose, and the court sees that the two of you have reconciled. Keep in mind, however, that reconciliation can reset the one-year waiting period for divorce if you once again separate.

What happens if my spouse and I reconcile briefly during the one-year separation, but still wish to obtain a divorce after one year?

It used to be the case in North Carolina that sexual contact with a spouse during the one-year separation put an end to living “separate and apart.” Due to changes in the law during the 1980s, this is no longer the case, although the law and judicial precedent prescribe what does—and does not—halt the 12-month separation period required for divorce. State law (§52-10.2.) explicitly notes that “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.” Instead, resumption of marital relations “shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” The “totality of the circumstances” may include, for example, whether you and your spouse have:

  • Moved back in together
  • Shared household duties
  • Told friends and family that your problems are resolved
  • Appeared in public together

It may also include seemingly minor details such as where your car, pets and other belongings are kept and how bills are paid as well as how long a (seeming) period of reconciliation lasts. If you and your spouse resume marital status and cohabitate, however, you must wait until one year from the date of the second separation to officially obtain a divorce. While this may seem like a simple process, complicated issues involving child custody, child support, alimony and asset division can arise in divorce, which is why it’s important to have the assistance of a Raleigh divorce lawyer.

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