One of the most commonly asked questions and frequently misunderstood concepts about the divorce process is what constitutes a legal separation in NC. The purpose of this page is to explain everything you need to know about legal separation – what it is, how you prove you are separated, what steps you should take to protect yourself legally after you are separated and more.
What is a Legal Separation in NC?
In North Carolina, a legal separation occurs on the day that a couple separates from one another, meaning that they move into a separate residence with the intent to remain separate and apart from one another permanently. In order to qualify for a divorce in North Carolina, a legal separation for at least one year is necessary. It is not necessary that both spouses intended for the separation to become permanent, the intent of one spouse is sufficient to satisfy the requirements of North Carolina law to obtain a divorce. However, if one spouse moves out and the understanding by both is that the separation is temporary, then the one year separation period has not started until one spouse decides that the separation is permanent.
How Do You Prove a Legal Separation in NC?
This is where many people get confused and “how to prove a legal separation” is one of the most frequently asked divorce questions that we see in our office. You do not need a separation agreement nor must you file any paperwork in the court system to prove that you are separated from your spouse.
When the time comes to apply for a divorce, you will state under oath that you have been separated from your spouse for at least one year, and provided that your spouse does not dispute the separation, then that is enough. In the rare instance where one spouse makes an appearance in court and contests the date of separation, it may become necessary to offer additional physical evidence to prove the date you separated.
This can come in the form of a lease agreement for a new apartment, separate utility bills, a change to your driver’s license, testimony of witnesses who have visited you at your new residence, etc. A court will look to the “totality of the circumstances” to determine when the legal separation occurred.
Sometimes the date of separation can have a huge impact on other aspects of your case, such as the valuation of property for purposes of equitable distribution, or the amount or duration of alimony. If you are in a situation where the date of separation might be contested, you should talk to a divorce lawyer to discuss how best to proceed and map out a legal strategy to put you in the best possible situation for your case.
If you are confused about what it means to be legally separated in North Carolina, or what the impact of a legal separation is, you should talk to a lawyer about your case. Click below to submit your information for a case review.
Common Mistakes about Legal Separation in NC
There are several common mistakes that people make about legal separation in NC. The first, and most common, is that people think they can just “make up” the date of separation and then apply for a divorce. The common statement we hear is that “we just separated a couple months ago, but can’t we just lie and say we separated a year ago?”
The answer is an emphatic NO. First and foremost, good luck finding a lawyer that would be willing to file that lawsuit for you. I doubt you would find one willing to risk their law license just so you can get divorced a couple months early. Second, even if you were able to handle the divorce on your own and get a judge to give you your divorce, you would only be able to obtain it by lying in court which is perjury and a criminal offense.
Finally, all that aside, your divorce judgment would not be worth the paper it was written on. It is an invalid divorce because the Court never had jurisdiction to enter the divorce in the first place. What this means is that even if a judge granted your divorce, the divorce is void and you aren’t truly divorced.
So if your spouse ever got really mad at you and wanted to make your life hell, they could re-litigate your entire case all over again at anytime in the future. Do you really want to live with that your entire life? And if you decided to get remarried, now you would be committing bigamy, also a crime in many states.
Bottom line? Just wait out the year and do your divorce the right way so that you don’t have any concerns or issues cropping up later on.
Can You Live Together and Still Be Separated?
I get asked this question all the time and I’m not sure why people think that living in separate bedrooms is the same thing as being separated. I’ve actually had people tell me during an initial appointment that they have been separated for several years. When I ask where their spouse lives, they tell me “Oh, he/she lives with me in a separate bedroom.”
Sorry folks, living in separate bedrooms doesn’t qualify as being legally separated in North Carolina. To be legally separated in North Carolina, one of the spouses must physically move out of the residence into a separate residence under a separate roof somewhere else. They must have a new address entirely that is separate and apart from the marital residence.
A rarely used exception to this would be if the home was partitioned and divided into two separate and distinct living areas with completely separate addresses, such as would be the case if the home was a duplex. In this situation, they would be living under the same roof but have their own residence.
Why a Separation Agreement is so Important
North Carolina is one of a handful of states that allow a divorcing couple to create an agreement that resolves all aspects of their case and keep that agreement completely private. Some of the issues that can be resolved in a separation agreement include:
- Dividing all marital property, including financial accounts and even the marital home
- Setting an amount and duration of alimony – or providing that no alimony will be paid at all
- Establishing a custody schedule and parenting plan for the kids
- Calculating the amount of child support that should be paid
Many of our clients prefer to keep all of these very private issues out of the court system and the public eye. A separation agreement can help them to accomplish this. However, a separation agreement is an important legal document and when you sign it you are giving up some potentially valuable legal rights.
We highly recommend that you contact a Divorce Lawyer to, at the very least, go over your draft agreement with you and make sure that you have not missed any important issues and that the agreement properly states what you want to happen. There are various legal requirement for a separation agreement to be valid, most importantly that the document be signed and notarized by both spouses. In addition, you must be separated, or intend to separate, for a separation agreement to be enforceable. If you aren’t separated when you execute the agreement, you should separate shortly thereafter.
If you have been presented with a one-sided separation agreement by your spouse or their attorney, call our office so that we can review the agreement and help you respond appropriately to your spouse’s attorney.
The Benefits of a Private Separation and Property Settlement Agreement
Many people grossly underestimate the importance of negotiating a separation agreement and property settlement outside of court. As mentioned before, the purpose of this agreement is settle all issues related to your divorce without the need to file a lawsuit and have a judge decide these issues. By voluntarily agreeing to resolve these issues out of court, you can substantially reduce the overall legal cost related to your divorce.
Taking these matters to court, or litigating them, can run into the tens of thousands of dollars, versus having a lawyer draft up an uncontested separation agreement which will cost a couple thousand dollars. In addition, an uncontested separation agreement gives you much more control over the process than giving these issues to a judge to decide.
Typically, only a small percentage of cases (5% or less) make their way to a final trial or hearing in front of a judge. And even in those cases, many will resolve on the day of the hearing as one or both parties start to become nervous about the prospect of letting a man or woman in a black robe decide their fate. If you can shortcut this entire process by resolving your case out of court, it will give you much more control over how your case is handled.
Finally, we should point out that the financial cost of litigation is only one part of the equation. The emotional cost of litigating a contentious divorce can rip at families for years, especially where there are small children involved. You can avoid all of this heartache and stress by agreeing to negotiate and enter into a separation agreement outside of court.
How to Know if Entering a Legal Separation Agreement in North Carolina is the Right Choice?
Many reasonable people would love to enter into a legally binding separation agreement. You may be one of them. However, this isn’t always possible. Here are some of the warning signs that indicate when it may be a waste of time to negotiate a legal separation agreement:
- Your Spouse is vindictive and hateful
- Your Spouse will not share finances with you
- Your Spouse has physically or mentally abused you in the past
- Your Spouse has indicated a willingness to attempt to turn the children against you or denies you access to the children
- You are unable to negotiate on equal footing with your spouse
All of these situations can create a toxic environment in a marital residence. We’ve seen many cases where reasonable minds would be able to come to an agreement on property, custody of children, and spousal support with minimal cost and emotional expense. However, due to the actions of one spouse acting unreasonable, hateful or in a threatening manner, getting the courts involved becomes necessary.
If you are in a situation where your spouse is acting vindictive, is unwilling to share finances with you, or has abused you in the past, then will likely need a family law attorney to get involved on your behalf. In addition, if your spouse is keeping you from seeing your children, then often the only option is to file a child custody lawsuit sooner rather than later so that you can be given some time to see your kids.
How to Know If You Need An Attorney?
Even in situations where both spouses are acting reasonable, you may need an attorney to help you negotiate a discrete issue or draft a legal separation agreement. Don’t attempt to handle this on your own – we’ve seen way too many DIY legal separation agreements that leave much room for interpretation and disagreement – not to mention they may not even be legally valid in North Carolina.
At a bare minimum, we recommend that you consult with an attorney at the very outset of your case, before you begin settlement negotiations, so that you can get a handle on what your legal rights and obligations may be before you enter into settlement negotiations with your spouse. Our divorce assessment is perfectly tailored to assist you in this process.
Then after you have reached an agreement with your spouse, we recommend that our clients come back to us to let us draft the separation agreement for them. In this way you can make sure that all your bases are covered and that you are legally protected. In some cases, you may not be able to negotiate on your own, or your negotiations may stall.
If this happens to you, we are able to step in and use our years of experience in handling family law matters to your benefit. We can let you know whether you or your spouse is being unreasonable, and help you to get your agreement finalized.
Dating During a Legal Separation in NC
One of the most common questions we get during our initial assessment with a client is whether or not they can start dating after they are legally separated, but before they have entered into a separation agreement. The answer is a definite yes and no. (Brilliant lawyer answer, right?)
Yes, from a purely legal standpoint, you may start to date after you are legally separated. However, just because you can, doesn’t mean you should. If you start to date after the separation, it is likely that you have already emotionally divorced yourself from your spouse. However, just because you have moved on doesn’t meant that your spouse has. If your spouse is still holding out hope that you will reconcile and are emotionally invested in your marriage, imagine how devastating it could be to them if they find out you are dating? (And trust me, they WILL find out).
Learning that you are dating could be the equivalent of learning that you have had an affair, and many jaded spouses will believe that you were probably dating your new boyfriend/girlfriend even before you separated. If this happens it can lead to all sorts of other legal problems for both you and your new paramour.
We’ve actually had cases where a husband cost himself approximately $90,000 when his wife unexpectedly pulled a settlement offer after seeing the husband holding hands with another woman in public. As a result, we typically recommend that our clients hold off on dating until after the ink is dry on their legal separation agreement. There is too much risk involved to not wait a couple months.
What is a Court-Ordered Legal Separation?
In many cases, one spouse will voluntarily leave the marital residence. However, in extreme cases a judge can order a legal separation. In North Carolina this is called a Divorce from Bed and Board. Many people get confused by this name, because a Divorce from Bed and Board is not a divorce at all, but rather just a legal separation. To obtain a Divorce from Bed and Board, there must be fault on the part of the spouse against whom you file the lawsuit. To obtain a Divorce from Bed and Board, you must prove one of the following:
- Malicious turning out-of-doors;
- Abuse of drugs or alcohol;
- Cruel or barbarous treatment by one spouse to the other; or,
- Indignities to the person of the other spouse to such an extent as to render his or her condition intolerable and his or her life burdensome.
In addition, the innocent spouse must prove that they were a dutiful, supportive and caring spouse who did no wrong. You should note that actions for Divorce from Bed and Board are rarely granted, and are only used in extreme cases. But in the right situation, this is a powerful tool that can be used to force one spouse out of the marital home.
The Effect of Legal Separation in NC
A legal separation is important in North Carolina because it is a necessary first step to obtaining a divorce. Unlike other states, if you don’t separate in North Carolina, you can’t obtain an Absolute Divorce. In addition, a legal separation is necessary to file claims such as post-separation support, alimony and equitable distribution in Court. And although we strongly encourage our clients to try and resolve their case outside of court through a legally enforceable separation agreement, there are certain situations where effective negotiations just aren’t possible.
And this precipitates a common question – should you negotiate a separation agreement and then move out or should you move out and then negotiate a separation agreement?
Once again, the answer really depends on your situation and how cooperative your spouse is. In highly volatile marriages, where threats are being tossed around like candy at Halloween, we typically counsel our clients to attempt to negotiate a separation agreement before leaving the house. However, in more trusting relationships, we are willing to allow our clients to negotiate an agreement after a separation has already occurred.
Can You Reconcile after a Legal Separation?
The answer is a surprising yes – many people need a period of legal separation to take time to work on their own issues so that they can devote more bandwidth to working on their marriage. Some marriage counselors will even recommend that a married couple take some time off to work on the relationship.
As a therapy tool, a legal separation can be very helpful. And yes, a couple can reconcile at any time if they mutually choose to do so. By reconciling, any pending court actions can be withdrawn and hearings cancelled. Judges love to hear when couples are attempting to reconcile.
However, a reconciliation can have substantial legal consequences if you have already entered into a separation agreement and if you have already divided up marital property as a result of that agreement. Whatever property you have already divided would be considered the separate property of the spouse who received it. Reconciliation can also affect the payment of spousal support and postpone the date that you would otherwise qualify for an absolute divorce.
If you are thinking about separating and would like to learn more about your legal rights, we recommend that you contact us and get all your questions answered.