Before a married couple can divorce in North Carolina, they must separate and live apart for 12 months with the intent of permanently separating. The required year of separation is time that can be used to develop a separation agreement containing the terms of your divorce. In most cases, the parties to a divorce obtain experienced family law attorneys to protect their interests and help negotiate a separation agreement.
Before a divorce in North Carolina can be made final, the couple must divide marital assets, such as real estate and investment or retirement accounts, and debts in an equitable manner. Divorcing couples also must deal with issues such as child custody, child support, and alimony. If a divorcing couple does not go to court with an equitable separation agreement that addresses these issues, a judge will decide the unresolved issues.
A Wake County separation lawyer with Charles R. Ullman & Associates can help you work with your estranged spouse and their representative to develop a separation agreement necessary to complete your divorce. The North Carolina State Bar Board of Legal Specialization has certified Attorney Charles R. Ullman as a Specialist in Family Law. He concentrates his legal practice exclusively on family law matters, including separation agreements, legal separation, and divorce.
If you have separated from your spouse or plan to separate in Wake County, North Carolina, turn to Charles R. Ullman & Associates for help resolving the issues required to end your marriage. Contact us today for a confidential conversation about starting the next chapter of your life.
How Is Separation Defined in North Carolina?
To be considered separated from your spouse in North Carolina, the two of you must live in different homes, and at least one of you must intend that the separation be permanent.
Living in separate homes without the intent to be permanently separated, such as while working out of state, on a military assignment, or caring for an ill relative, is not considered a separation.
To be eligible to obtain an absolute divorce and end the marriage, a couple’s separation must last for at least 12 months. If you reconcile during separation and then separate again, the 12-month count starts again.
Isolated incidents of sexual contact between separated spouses are not necessarily considered reconciliation. If challenged, a North Carolina court will look at whether the spouses have been “consistently intimate” and whether the totality of the circumstances constitutes a valid separation.
Avoiding reconciliation is important because, when making decisions about dividing marital property, the property under consideration is valued as of the date of separation. If the separation date changes, it could affect property values and how assets are distributed. This could have a financial impact in a volatile real estate market, for example.
Reconciliation may also be cited to excuse prior acts of marital misconduct, which might otherwise be used to argue for child custody, visitation restrictions, or spousal support (alimony). A North Carolina court may award alimony on the basis of marital infidelity, but reconciliation indicates that the misconduct has been forgiven.
What Is Legal Separation in North Carolina?
North Carolina law also recognizes a form of separation known as divorce from bed and board. This is often called a legal separation since the court orders it.
One spouse might seek a court-ordered separation if the other spouse refuses to cooperate with their desire to separate and divorce or if one spouse has:
- Abandoned the spouse who is seeking separation.
- Thrown the other spouse out of the marital home.
- Endangered the injured spouse’s life with cruel treatment or physical abuse.
- Inflicted emotional or psychological abuse on the injured spouse that is intolerable and a burden on their life.
- Made the complaining spouse’s condition intolerable and life burdensome through excessive alcohol or drug use.
- Committed adultery.
A divorce from bed and board does not end the marriage, but by petitioning the court for a legal separation, the complaining spouse may be granted post-separation support, possession of marital assets such as the couple’s home, child custody, and child support.
A spouse filing for a separation order would have to show the court they did nothing to provoke their spouse’s misconduct. The other spouse would have the right to contest the complaint, such as by presenting evidence that the allegations are untrue or that the complaining spouse has forgiven such conduct in the past.
What Happens If a Separation Agreement Is Broken?
A divorce from bed and board is a court-ordered separation. If either party to the order violates it, they could be charged with contempt of court and sanctioned by the judge with jail time and/or a monetary fine. This conduct would also have a negative impact on any decisions made as the judge considers the final order for absolute divorce.
North Carolina law does not require a separating couple to execute a separation agreement. However, if the spouses want to settle such issues as child custody and support, alimony, division of marital assets, and responsibility for debts, they can make their decisions binding by executing a separation agreement. This requires each spouse to sign the document and for their signatures to be notarized.
If a separation agreement has been formalized as a contract, the remedy for a violation is a breach of contract lawsuit. The injured spouse could ask the court for monetary damages, a court injunction to stop certain behavior, or a specific performance order, which directs a party to perform the promises made in the agreement.
A separation agreement should include a clause allowing the court to award expenses and attorney’s fees to the party who has to bring an enforcement action.
Let An Experienced Wake County Separation Lawyer Help You
You do not have to have a separation agreement to obtain a divorce in North Carolina. But working out the issues related to separation and divorce before going to court can make the divorce process faster and less stressful and keeps matters private. Charles R. Ullman & Associates can help you negotiate a separation agreement addressing such details as property division, spousal support, and if there are children, child custody, and support.
At Charles R. Ullman & Associates, we recognize that when a married couple has decided to separate, the consequences for each spouse and their family are far-reaching. We’re here to help you make well-founded decisions with your future in mind. Learn about how to choose a family law attorney to represent you. To get more information or to schedule a confidential consultation with a Wake County family law attorney to evaluate your options regarding separation and divorce, contact us by calling us toll-free or by filling out our online contact form.