Divorce and Separation: What's The Difference?
Divorce in North Carolina usually follows one year in which the couple is physically separated. In some cases, a couple goes through legal separation prior to divorce. In a few cases, a divorce may be granted if one spouse has been declared legally insane and the couple has lived apart because of this illness for three years or more.
There are important differences between divorce and legal separation laws in North Carolina. The choice you make may have far-reaching consequences. It is easy for someone who is unfamiliar with the process of ending a marriage to be overwhelmed by decisions facing you, especially if you try to obtain a divorce on your own without legal guidance. We want you to have the information needed to make well-grounded, forward-looking decisions.
The compassionate Raleigh separation and divorce lawyers of Charles R. Ullman & Associates can help you through the process of ending your marriage. We’ll take the time to get to know you and your goals for the future and then offer personalized guidance. Our trusted attorneys will guide you through the process of separation and divorce with a focus on fairness and understanding. Charles Ullman focuses his legal practice on family law including legal separation and divorce. He has obtained specialized training in this area of law and is recognized as a North Carolina Board Certified Specialist in Family Law.
If you are contemplating separation and divorce and have questions about what steps to take, turn to Charles R. Ullman and Associates for help. In the meantime, the following provides an overview of the main differences between divorce and separation in North Carolina.
Difference Between Divorce and Legal Separation
The biggest distinction between a legal separation and a divorce is that if you only obtain a legal separation, you are still legally married. You cannot remarry. If you get a divorce, then you are free to remarry.
Legal separation allows a couple to maintain eligibility for joint health insurance benefits and Social Security benefits while living apart. However, a disadvantage of a legal separation is you may still be on the hook for the debts of your spouse.
Legal separation also preserves each spouse’s property inheritance rights upon the death of the other spouse.
A spouse is still considered next of kin after a legal separation. The spouse still retains decision-making authority about health care and financial decisions if you become incapacitated and cannot make the decisions for yourself. Do you want your separated spouse to make end-of-life decisions on your behalf? It’s a question only you can answer.
You can get a divorce without a legal separation order in North Carolina, but you do have to live apart for a period of time.
Legal Separation Law in North Carolina
A couple must separate and live away from each other for at least one year before they can be divorced. If the couple reconciles, the calendar starts over if they decide to separate again.
In many cases, the separation is a mutual agreement that one spouse will move out of the couple’s home. While separated, the couple is still married. However, they should develop a separation agreement to decide matters like payment of bills, division of assets, alimony, child custody and child support.
Under Which Circumstances Do I Need a Legal Separation?
You are not required to have a legal separation agreement before obtaining a divorce in North Carolina. However, there are some circumstances in which you may need to seek a legal separation.
For example, if your estranged spouse refuses to agree to move, you may need a legal order to remove your estranged spouse from the couple’s home prior to a divorce. You may seek a legal separation order. This court order is known as “divorce from bed and board.” A court-ordered separation is a step toward divorce. But while you will be legally separated, you are not free to remarry at this point. The legal separation order does not end the marriage.
When filing for legal separation, the spouse initiating the legal process of separation must show that the other spouse committed one of the following acts:
- Abandoned his or her family
- Committed adultery
- Maliciously turned the other out of doors
- Endangered the life of the other by cruel or barbarous treatment
- Become an excessive user of alcohol or drugs
- Acted in some other way as to render the complaining spouse’s condition “intolerable” and his or her life “burdensome.”
The spouse who is a target of this complaint may contest the allegations. He or she may claim the allegations are untrue, that his or her spouse has previously condoned, forgiven or enabled the actions in the complaint or that their actions were in retribution for similar acts by the complaining spouse such as a retaliatory affair.
The target of a legal separation complaint may ask for the matter to be heard by a jury.
Once a legal separation is in effect, either spouse may seek orders or agreements pertaining to:
It is best to have a separation agreement agreed to by both spouses before a divorce proceeding is presented in family law court.
Absolute Divorce Law in North Carolina
North Carolina is a no-fault divorce state. This means couples can divorce without legally assigning blame. It can be a perfectly amicable process that proceeds after a married couple has lived apart for one year.
Regardless of how it arrives in court, a petition for absolute divorce in North Carolina requires a judge’s order. The judge makes final decisions about asset division, alimony, child custody and child support and any other related legal issues. If the judge is presented a separation agreement that both sides have already signed off on, the judge’s order will usually reflect that plan.
Once the judge signs the divorce order, the couple is no longer married.
When is it Better to Request a Divorce?
The answer to this question that is it depends on your particular circumstances and goals.
If you wish to remarry eventually, you will need to get a divorce.
If your spouse is a gambler or spendthrift and has burdened the marriage with unmanageable debt, you may want a divorce so that you will no longer be responsible for the future debts incurred by your ex-spouse
But there are circumstances in some marriages when being separated but not divorced has advantages.
For example, if you and your spouse have a disabled child and the family’s health insurance is provided through your job, you may wish to consider a legal separation to provide access to health insurance for your spouse and disabled child while you are living separately from your spouse.
We can help you understand the separation vs. divorce pros and cons.
How Can a Family Law Attorney Handle My Divorce or Legal Separation Case?
The divorce lawyer that you select protects your rights and helps you navigate the many issues entailed in separation and divorce, including child custody, child support, alimony and division of assets.
A divorce attorney at Charles R. Ullman can help you sort out the many issues involved in legal separation and the negotiation of a separation agreement that safeguards your interests.
If you and your spouse have children, you will have to negotiate the issue of child custody. This can be an emotionally charged issue. Both parents have certain rights. Having an experienced attorney from Charles Ullman & Associates guiding you can help you determine whether to seek sole custody or agree to joint custody of your child or children.
You and your spouse will also have to come to terms on a child support agreement. Your attorney at Charles Ullman & Associates can discuss with you the various types of child support arrangements and help you determine which approach is best in your situation.
Contact a Raleigh Separation or Divorce Lawyer
At Charles R. Ullman & Associates, our attorneys are compassionate family law attorneys who have a thorough understanding of North Carolina law pertaining to separation and divorce. Our attorneys offer personalized attention and will take the time to understand your marital situation and your goals for the future. Charles R. Ullman & Associates has more than 20 years of experience representing family law clients and helping individuals work through the dissolution of a marriage.
Our trusted attorneys are ready to stand by your side through all the difficult decisions regarding separation and divorce. Contact us online for a free consultation.