How To Separate in North Carolina

separation graphic

While a divorce formally ends a marriage between two people, a legal separation does not. However, if a couple opts to separate rather than divorce, a couple will need to address many of the issues that apply to divorce cases, such as child custody, child support, and spousal support.

Both spouses are free to remarry after a divorce case. But spouses are not permitted to remarry after a legal separation unless they ultimately decide to divorce.

How to Legally Separate in North Carolina

To be legally separated, you and your spouse must be living in separate houses, and one or both of you must intend for the living arrangement to be permanent. If you and your spouse have been separated for at least one year, you can file for an absolute no-fault divorce in North Carolina.

With guidance from your attorneys, you and your spouse can negotiate a separation agreement. This agreement is a contract in which the two spouses outline the agreed terms of their separation, including:

For a separation agreement to be valid, both partners must sign the written agreement, and their signatures must be notarized. A separation agreement is legally enforceable. If either party fails to comply with the contract terms, the court can intervene on the other spouse’s behalf.

There are numerous reasons why a couple might choose to seek a legal separation. For example, if a couple’s religious beliefs forbid them from divorcing, a legal separation agreement would allow them to live separately without officially ending the marriage and going against their personal beliefs.

Other couples decide to separate because they simply aren’t sure if they want to divorce permanently. Many couples use trial separations. While separated, some couples decide to reconcile and resume their marriage. If a couple believes there’s a chance for reconciliation, they may be more inclined to separate than file for divorce.

Others may opt for legal separation for the sake of their children, health insurance coverage, or for other financial reasons.

Do You Have to Live Separately to Legally Separate in North Carolina?

couple separatedcouple separatedYou and your spouse must live separately for one year before initiating divorce proceedings if you plan to seek a no-fault divorce. If you continue living in the same home, you would not be considered legally separated. Neither would you be considered legally separated if you are living apart, but neither you nor your spouse intends for the separation to be permanent.

During a trial separation, the partners in a marriage can decide whether divorce is the right path for them. It’s a good idea to outline the terms of the trial separation in a written document if you and your spouse plan to live separately for more than a month. A court cannot enforce trial separations, so this document will be informal.

After the agreed-upon window of time, you and your spouse can decide whether you will get back together, divorce, or separate permanently. If you decide to get back together, you can resume the marriage without interference from the court. If you decide to separate permanently, you and your spouse can negotiate and sign a formal separation agreement.

Your separation agreement should include details on the following applicable topics:

  • Responsibility for payment of debts
  • property division
  • child custody and parenting time
  • child support
  • how you will pay household bills during your separation
  • spousal support

A separation agreement is not legally required when a couple chooses to legally separate. However, the agreement is helpful to delineate each partner’s financial obligations. If either spouse fails to adhere to the signed agreement, the other spouse can seek assistance from the court to enforce it.

Under limited circumstances, you also may obtain a court-ordered separation through a Divorce from Bed and Board decree. Despite its name, it is a form of separation rather than an absolute divorce. Once you have obtained a Divorce from Bed and Board, you will still need to wait a year to qualify for an absolute divorce. You are not free to remarry until you have obtained an absolute divorce.

To successfully obtain a decree of divorce from bed and board, you’ll have to give proof of serious fault by your spouse such as:

  • Adultery
  • Abandonment
  • Desertion
  • Cruelty
  • Drug abuse
  • Indignities

 A family law attorney can help you evaluate whether you would benefit from seeking this type of court-ordered separation.