A couple may move apart after their marriage starts to fail and live in separate dwellings. However, they are not legally separated under North Carolina law unless other steps are taken. The terms separation, legal separation, divorce from bed and board and absolute divorce all have different meanings in North Carolina family law. The terms can be confusing because they sound similar. It’s helpful to have an experienced family law attorney guiding you through the process and helping you understand the steps to take.
Attorney Charles R. Ullman concentrates his legal practice exclusively on family law matters including separation agreements, legal separation and divorce. He has more than 20 years of experience helping individuals in Wake County who are facing divorce. He is certified by the North Carolina State Board as a Specialist in Family Law. If you are considering filing for separation in N.C., turn to Charles R. Ullman & Associates for help with the issues involved in ending a marriage.
Separation and Legal Separation in N.C.
You do not have to have a legal separation to obtain a divorce in North Carolina. However, North Carolina law requires that a couple be physically separated at least a year and a day before they can file for an absolute divorce in North Carolina. The clock starts on the date the spouses move to separate residences. It is important to plan ahead before separating to avoid having a hard time financially and emotionally.
A divorce legally and formally ends a marriage, whereas, a legal separation order may be sought if a divorce becomes difficult and the spouse refuses to cooperate. For example, if one spouse refuses to agree to move out, the other spouse may petition the court for a legal separation, known as a divorce from bed and board. This is a court-ordered legal separation and is a step toward divorce. A couple is not deemed to be legally separated under North Carolina law unless one of the spouses obtains a “divorce from bed and board.”
Even if you are legally separated from your spouse, you are not yet free to remarry. However, a legal separation can entitle you to receive many of the same benefits as an absolute divorce, including alimony, asset division, child custody, child support and attorney’s fees.
How to File for Legal Separation in North Carolina
- File the Complaint. The legal separation papers, 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.
- Establish Fault. 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 six 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, a Raleigh separation lawyer 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. Our attorneys can also assist you with an alienation of affection claim if you believe someone has interfered with your marriage.
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.
Common Questions About Separation
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 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 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 while legally separated?
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.