Legal Separation: What You Need to Know

Legal Separation in North Carolina

key components and the differences from absolute divorce

Many people are often confused on how to file for separation in North Carolina.  Every state has different laws related to separation.  This article is intended to make the process of legal separation easier to understand for NC residents.

A couple becomes legally separated on the date that a husband and wife move into separate residences with the intent to continue living apart from one another permanently. Living in the same home in different bedrooms is not being physically separated. Oftentimes people are under the mistaken belief that as long as they sleep in different bedrooms in the same home and say they are separated that this is sufficient. It is not.

Physically separated under the eyes of the law means that you and your spouse live in separate homes.  If you have a situation in which you have two homes on the same property or a home that is divided and has totally separate living quarters whereby neither party would ever see the other or share any rooms, this may be sufficient. However, your safest bet is to move into a totally separate residence at a separate location.

The other component of a separation is the intent of at least ONE party to be separated. If the parties stop living together and each person maintains his or her own home, it is not necessary that both parties agree on or want the separation. All it takes is the intent of one of the spouses to separate and to cease living together.

In the state of North Carolina, a couple must be legally separated for one year and a day before they can file for divorce.  There is no need to have a separation agreement or file anything with a court for the legal separation to take place. The criteria for the separation is explained above.

Can You Date Once You Separate?

This is probably one of the most commonly asked questions…When can I start dating after I separate from my spouse? This is tricky for many reasons.  There are two different scenarios in which we must examine.

1) The person you want to date now was someone you had a relationship with pre-separation

Whether you had sexual relations with the person or not this can create problems. If you start dating the person immediately following a separation and suspicions were there, then of course this will cause your spouse and his or her attorney to dig further. If you actually did have sexual relations with the person, then post acts of sexual misconduct can be used to corroborate allegations of pre separation misconduct.

Why does this matter? If there is an alimony claim involved and you are the spouse that needs money and you have had a sexual relationship with a 3rd party prior to separation, then your alimony claims is barred if this can be proven in court. If you are the spouse that would pay money to the other spouse, then this conduct bolsters the other side’s claim.

Also, people often forget that a sexual relationship with a third party while you are married regardless of whether you are separated is still technically adultery which is a minor criminal offense. Rarely is this every charged but it is still something to be aware of.  It is also is another allegation that can be used in court to bolster either sides claims.

2) You start dating someone after the separation that you did not have any relationship with pre-separation

This wouldn’t necessarily hurt your case if you did not have illicit sexual relations with the person before you separated. But it is still adultery as stated above to have sex with a third party while you are still married even if you are separated.

However, dating after separation before legal documents are signed either by agreement or order of the court, usually tends to complicate matters. Divorce is already an emotional situation and add in a new relationship and feelings get hurt and emotions run even higher. And if the person you are dating is spending the night when your children are present, a judge very well many not like this and it could affect how much time you have with your children if you have to go to court. Judges like stability and consistency for children and allowing a new person to spend the night and immediately become part of a child’s life so soon after a separation rarely looks good in court.

Can a Court Order a Separation?

Yes, and this is done via a divorce from bed and board which is a court-ordered separation of the parties.  The parties remain married until an absolute divorce is obtained but a divorce from bed and board grants the parties a legal separation.

Most of the time parties separate on their own accord and a divorce from bed and board is not sought by either side. A divorce from bed and board is rarely granted or pursued by separating individuals.

Oftentimes you may see allegations for the grounds for a divorce from bed and board in court filings but rarely does one side pursue a hearing on the matter.

The statute does not specifically allow a court to give possession of a marital home if a divorce from bed and board is granted, but in some cases a judge will give possession of the marital home to one party.

If a divorce from bed and board is granted, then you lose inheritance rights that one has solely by virtue of the marriage such as a right to intestate succession in the estate of a spouse or a year’s allowance to name a few.

Oftentimes, the parties do nothing and divorce after a year or work out their issues via a separation agreement which addresses the issues that a divorce from bed and board would allege.

What happens if spouses reconcile?

Spouses are free to reconcile at any time after they separate.  Reconciliation occurs when the spouses voluntarily renew the marital relationship.

The primary ground for which divorces are granted in North Carolina is based on a separation of a year and a day. The policy behind the year waiting period was to give spouses a chance to assess if they really did want to go through with the divorce.  The waiting period often frustrates people because in many other states the waiting period for obtaining a divorce can be as little as a few weeks.

It does happen more than one would think that spouses do reconcile before the year is up.  If the spouses do truly reconcile, then a new one year waiting period is required.  Isolated incidents of sexual relations is not usually considered a reconciliation. Or spending time together on a sporadic basis is typically not considered a reconciliation. However, if you do truly want to separate it is best to avoid this type of conduct to eliminate any question about your separation status.

So what is next?

Often, just prior to or during separation, people consult with attorneys about the separation process and frequently hire attorneys to draft their Separation Agreement and Property Settlement papers. Within these separation agreements people often outline how their property will be divided, how much, if any alimony will be paid, how child custody will be arranged, and what amount of child support will be paid. A separation agreement can contain any one or all of the issues.

The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the divorce itself. The divorce can be obtained after one year and one day of separation in North Carolina.

Separation agreements are papers, which once signed by both parties involved, are binding as contracts. It is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.

Settlement: the most attractive option

North Carolina is fairly unique in allowing parties to keep support, property and custody issues from ever coming into court. In other states, these issues are generally submitted, at a minimum, for court approval at the time of divorce. As already mentioned, except for the absolute divorce which must be done in this state by a judge, all of the remaining four issues can be settled in North Carolina between husband and wife privately once they have fulfilled the required separation period. If any of these issues is not settled by private agreement, such issues could be decided by a judge publicly if either spouse initiates and proceeds with litigation.

Once the separation is in effect, the vast majority of married partners in North Carolina opt for private settlement regarding custody, support and property division, given that most people can resolve their differences without the intervention of a judge. You should keep this fact in mind, because statistics nationwide predict that more than ninety percent of all couples will negotiate a settlement when they break up their marriage.

Such a settlement will usually be embodied in a document, or contract, known in the North Carolina of the 1990s as a “Separation Agreement and Property Settlement.” From the Sample Separation Agreement , you will notice that these contracts usually follow a certain format: an introduction to the parties, some recitals about why the contract is being entered into, separate articles devoted to various topics such as property division, custody and so forth. This is not the only format that can be used, but it is a commonly used format.

In a minority of cases in which litigation had begun but the parties resolved the issues through settlement prior to having a trial, the settlement might also be embodied in a court document known as a “Consent Order.” A consent order is simply the agreement of the parties, signed by both the parties (and sometimes their counsel) and a judge. Consent orders are different from regular court orders, in that a consent order would reflect the terms that you and your spouse work out between you whereas a regular court order would reflect a judge’s rulings on all the issues that have been tried in his or her court.

You might also agree, even though no one had previously initiated litigation, to put all or part of your settlement into a consent order because of some perceived advantage of a court order over a contract in your particular case. For example, a court order — unlike a contract — is enforceable through the court’s contempt powers.

There is also a higher standard imposed in North Carolina for modifying custody and child support orders than the standard used for obtaining an initial judicial declaration as to custody and child support. The required showing to modify an existing custody or support order is one of “changed circumstances.” In general, showing changed circumstances can be a difficult burden to meet.

Why settlement is preferable

Settlement is preferable in almost every case for any number of reasons. In almost all cases, resolution through settlement is less costly, less prolonged and less emotionally draining than litigation. The emotional strain of court proceedings is felt, moreover, by each spouse (regardless of who initiated the litigation) and also by the children, by other family members, and by friends and work associates who interact with the litigating spouses.

Divorce — even without litigation — is already a major emotional stress on any family. The changes in family living arrangements during the separation process alone causes temporary adjustment problems for the most sturdy of individuals. Added to such changes is all the uncertainty involved in allocating family financial resources that once went to one intact family unit and must now stretch to meet the needs of two households.

It is, then, little wonder that many families feel crushed by the extra emotional wear and tear of having to deal with court papers, including the burdensome discovery process of sharing written documents and answering written or oral questions, the selection and interviews of potential witnesses, and all the anxiety of formal court proceedings. Litigation is enough of a strain when it doesn’t feel like the whole web of one’s life is falling apart all at once. When one’s concept of who one is and what the future will hold is being altered by separation and divorce, sometimes radically altered, then litigation is almost more than someone can bear.

Another disadvantage to litigation is that the judge, and not either of the contestants, dictates the result. Once your case is litigated, you lose control over the process even when you think you (and your attorney) may be influencing the judge. The outcome of litigation is, moreover, never a real victory for either side. Each side loses from having had to go through adversary proceedings. It’s not only parents who suffer from courtroom proceedings. The children will be traumatized as well, whether or not they ever step foot in the courthouse. Regardless of your reasons for the separation, it is almost always advised that you try to settle out of court.

Just as important as minimizing emotional and financial devastation at a time of major personal crisis, settlement can be custom-tailored to a family’s interests and needs in a way that may not occur in the bureaucratic judicial system. That system cannot know your personal priorities and your family’s special customs the same way you and your spouse know those priorities and customs.

The judicial system is, on the whole, conservative in fashioning remedies. The system will not provide the kind of creative solutions that you and your spouse might create on your own, provided you both have the stamina necessary for negotiation and the capacity to be flexible. For all these reasons, you want to go to court only as a last resort, when nothing else looks like it will work.

Regardless of whether spouses can settle or they are forced to litigate, the independent nature of custody, support and property issues in North Carolina can drag out the ultimate resolution of all issues arising from separation. For example, custody can and might be resolved in North Carolina — by private agreement or in court — long before any other topics have been dealt with; or, property might be divided during the separation period long before there are any agreements with respect to custody or support. You will certainly want to consider during the negotiation process whether it makes sense to try to deal with all issues simultaneously, rather than one at a time as North Carolina law allows. In terms of peace of mind, closure and expense, it usually makes the most sense to settle everything at once and as expeditiously as feasible under your individual circumstances.

It is, of course, also often tactically advantageous to settle as many issues as possible all at once. A prime advantage of such a settlement technique is that either husband or wife has the opportunity to “trade” or compromise on items in one subject area (such as custody) for something that spouse wants more in another area (such as property). If, by comparison, all five topics are dealt with at separate times, as North Carolina law permits, “trading” across subject areas is going to be much more limited.

Negotiating successfully

Following just one piece of advice about negotiating may carry you to a satisfactory resolution. That advice is to focus most of your attention on the single issue that is most important to you (rather than allowing yourself to get sidetracked on issues that have only passing or minor emotional significance) and then to be prepared to make concessions on the matter that counts most to your spouse.

If you can see, ahead of time, that your most important issue is also your spouse’s most important issue, and the two of you are in opposite camps over that issue, negotiating may be a waste of time. If, on the other hand, you have figured out what your spouse most wants, and you can find a way to get to that point, that will provide you some leverage in the negotiations in getting what you most want.

Focusing on your single most important priority and your spouse’s highest priority are extremely important tactics that are all too often overlooked in negotiations for separation.

Let’s say you are the mother of two teenagers, both of whom hope and plan to go to college. You and your husband quickly drew up and signed a separation agreement and property settlement addressing only property and custody. Both children will reside with you. All the marital property, including the IRAs in your husband’s name, have been equally divided between you and your husband in the written agreement.

You entered into the written agreement, drafted without a lawyer, at a time that both of you foresaw you would have to ask a judge to decide the issue of child support because the two of you had sharp disagreements over that. You drafted the agreement yourselves, covering only custody and property, because you and your husband perceived both of those areas to be simple enough to do on your own. There was simply no contest over custody. You yourself felt especially secure about the property issues, too, because you have always managed the family finances. You were certain that you were not overlooking any marital assets when you tallied everything up. You also believed that all assets had been fairly valued and divided. You and your husband researched sample language for your written agreement in several legal texts; both of you understood your contract would be a binding agreement; and you are both hopeful that there are no major omissions or mistakes in the drafting you did. Thus, you are not really concerned about the future implementation of the custody and property agreement that the two of you have finalized.

You left child support out of your settlement discussions and the written agreement, however, based on your perception of your children’s financial needs and based on a concern that you might not have been able to draft an “air-tight” document concerning support. You believed the children would be entitled to receive monthly support above the Child Support Guidelines, which your husband would not agree to. You were both prepared, in the heat of angry conversations, to litigate the issue. You and your husband never discussed the children’s future college expenses, as the issue of child support was something the two of you did not discuss in any detail once it became clear that you were not going to be able to agree.

Now you have realized that getting your husband to agree to contribute to the children’s college education is much more important to you than having half of his IRAs; and contribution to college education is also now far more important to you than asking a judge to award monthly child support above the Guideline amount, which the judge might refuse to do anyway. You have also now been informed, correctly, that a North Carolina judge lacks the authority to order a parent to pay for college expenses unless the judge is merely enforcing a prior contract entered into between husband and wife. You did not know that earlier, just as you did not recognize earlier that college was a big deal for you.

At this point, you will be able, if at all, to get your husband to agree to contribute to college costs only by re-opening the negotiations that had previously resulted in a written agreement. Your husband may be interested enough in retaining all his IRAs or in getting some other item of property that he would consent to sign a new agreement that obligates him to contribute to college. On the other hand, he has now gotten used to the idea that he has divided the IRAs with you, according to what both of you deemed to be fair, and that he will just let a judge decide about monthly child support. In other words, your husband may no longer be interested in further negotiations with you.

The opportunity you once had for a more comprehensive settlement may be lost. Worse, you may be left with a bargain not as good as the one you might have struck with your husband initially. After enduring the stress (and possible expense, if lawyers were involved) of strenuous negotiations, parties may understandably be very reluctant to return to the bargaining table.

Therefore, you want to know — from the start — exactly where you want to go with the negotiations, sometimes even before the separation has begun. You also want to become more informed about some of the skills needed for successful negotiations. You can pick up tips about negotiating from a number of excellent books. An good place to start is with Getting to Yes: Negotiating Agreements Without Giving In by Fisher and Ury. The chapters in that book summarize some important points to keep in mind at all times: Don’t bargain over positions. Separate the people from the problem. Focus on interests, not positions. Invent options for mutual gain. Insist on using objective criteria. Know what to do if the other side is more powerful, or won’t play, or is using dirty tricks.

Negotiating in the face of the breakup of a marriage is a daunting task. The conflict with your spouse can get destructive; negotiations may get seriously out of control; one party may commit too early to something the party can’t or won’t do; and separation distress can be greatly augmented if settlement discussions aren’t mutual efforts to work out practical solutions that make sense for both partners and the children. Many couples cannot go it alone, but need to rely on lawyers or other professionals to smooth the way.

It is, of course, also extremely difficult for each spouse not to become embroiled in the issues that led to marital dissolution, whether or not the spouses enlist outside help for the negotiations. Your very best preparation for negotiations is to get your emotions under control and to inform yourself, as fully as possible, about:

  1. what you most need and want
  2. what your spouse most wants
  3. what the law says each of you is entitled to
  4. what your family income and expenses are now and what your income and expenses will be post-separation.

Don’t try to negotiate without getting a handle on this information, whether you are negotiating on your own behalf or you are using someone to negotiate for you. Don’t try to continue negotiations at a juncture at which one, or both, of you has lost objectivity.

Here are some tactics and attitudes to assume, if you do decide to try one-on-one negotiations with your spouse. Negotiate in a neutral place where you feel safe, at a pre-planned time. Break off negotiations immediately if things heat up unconstructively. A good starting point for settlement discussions is for you and your spouse to recognize, and enumerate, all the areas on which you agree.

Then find out more about all the things about which you can’t agree. Try to hear what your spouse has to say, without arguing the points. Try to get your spouse to hear what you have to say, without raising your voice. Be careful not to fence yourself in by indicating some dollar amount that you are offering, or that you are willing to accept. If you offer a dollar amount that you later realize was too high, your spouse’s expectations have been set at the higher amount. If you said you’d take an amount that you subsequently discover is too little to meet your expenses, you will have a devil of a time convincing your spouse to increase the amount.

Think about the items of property you are receiving when you and your spouse make guesses about their value; the lower the values on the items you will be receiving, and the higher the value of your spouse’s items, the more items you will get in a 50% division.

Address all the issues, not just some of the issues; look at the facts, not what you or your spouse imagine to be the facts; see if the two of you can create solutions rather than new areas for conflict. At impasses, talk together about what the likely outcome would be if you have to go to court. In order to make these predictions, you both need to know the basic materials presented in this book. You also need to look for points on which to leverage your requests. Such points include secrets that your spouse doesn’t want to make public, or your spouse’s sense of duty or your spouse’s pride in being known to do the right thing.

Remember, statistics predict you will settle the issues that may seem to be impossible to settle. But if you can’t settle under your own power, don’t wear yourself out trying. Just move on to the next step — get help from an attorney or another professional. If that person picks up the negotiations, the discussions may go on for some time. There may be telephone calls, letters, demands/counteroffers, proposed draft agreements, face-to-face meetings, delay. Still, you will most probably settle eventually and your separation will become a full, legal divorce.


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