If you live in North Carolina and are contemplating a divorce, you might or might not know that a period of legal separation is required before you can obtain one. If not, it’s important to understand what a legal separation is and how it differs from the divorce process itself. Legal separation and official divorce have different implications for matters like finance, property division, and child custody. Let’s take a closer look at those differences together.
What is a Legal Separation?
In North Carolina, before being able to officially pursue a divorce, the parties must live separate and apart for at least one year without the intention of resuming the marriage. While this is a longer period than some states require, one benefit of this extra time is that it does give the parties time to really think through their issues and to prepare for the divorce process itself if they decide to go forward with it.
Often, we are asked if a couple can remain living in the same house and be considered separated if they stop sharing a bedroom or live on different floors. This question is understandable from a financial perspective. The answer, however, is that it is generally not a good idea from a legal one. The wisest course of action is usually for the parties to obtain separate residences and live in those residences for a minimum of a year before pursuing a divorce. If, at any time, the parties resume living together or acting as a married couple, the one-year period will reset and begin again.
During the period of legal separation, the parties may choose to enter into what is known as a “separation agreement.” This is not a required agreement, but many couples do find these agreements advantageous. In these agreements, the parties can address issues concerning who will spend time with the children and when, what support, if any, will be paid from one spouse to the other during the separation, who will remain in the marital home, any property that may be sold or divided, and a variety of other issues.
Retaining an attorney during the separation period is wise, not only to assist with drafting a separation agreement that works well for your family but also to ensure that you begin taking the necessary steps to move forward with the official divorce process when you are ready.
In addition to the requirement of legal separation, there is also a residency requirement in North Carolina. At least one of the spouses must have resided in the state for at least six months before the official filing for divorce.
What is an Absolute Divorce?
After the legal separation has concluded, if the parties still wish to move forward with the divorce, they can officially begin the process. As a general rule, the official divorce process includes the following steps:
- Finding an Attorney: Ideally, you will have already found and retained an attorney you trust during the legal separation process. Finding an attorney early can help ensure that you preserve and protect your rights and address all of the issues you need to consider. However, if you didn’t have an attorney during the separation period, you should certainly find one to represent you during the divorce itself. Doing so can help you start off on the right foot and help you make the choices during the process that are best for you and your family.
- Filing the Petition: The filing of the petition for divorce with the appropriate court in your jurisdiction is the official “start” of the process. Your spouse will then be served with the paperwork, and they will have an opportunity to file a response. At that point, the case will officially be underway.
- Gathering and Exchanging Information: Often known as the “discovery” phase, this is the portion of the case where the parties gather important documentation regarding the issues they must address. Typical issues addressed during the divorce include property division, child support, alimony, and child custody. As a result, gathering necessary documentation in the form of financial records, medical records, school records, and other essential information will be important.
- Engage in Settlement Negotiations: Today, more than ever before, couples are choosing to use alternative methods of dispute resolution like mediation or collaborative law to address and resolve their issues almost entirely outside of a courtroom. Doing so often saves time and money, and it helps the parties avoid the stress often associated with courtroom litigation. Even better, drafting a settlement agreement outside of court truly gives the parties the freedom and flexibility to address their issues in a way that they find satisfactory. After all, you and your soon-to-be ex-spouse know your family better than any judge ever will, and finding resolutions that work best for your family on your own is often a great choice if you can do so.
- Litigating your Issues in Court: While addressing your issues outside of a courtroom is ideal, the truth is that it doesn’t always work for everyone. For any number of reasons, some couples decide that the best option is to allow the court to address their issues. In these situations, the parties will present their evidence and arguments to the court, and the court will ultimately render a decision on those matters. That decision is binding by the court until and unless the court later decides to modify it.
After all of these steps have been completed and the parties have either entered into an agreement that is approved by the court or the court has entered a decree finally addressing the issues of the party, they will be considered officially and absolutely divorced in the state of North Carolina. At that point, they can truly begin to move forward with their separate lives and to the future ahead.
Call the Law Office of Dustin McCrary
At The Law Office of Dustin McCrary, we know and understand every aspect of the divorce process. We have helped many clients on this journey as they work to find solutions that best fit their family and their future. On this journey, you want to know that you can have peace of mind and trust that your case is in good hands. We are here to offer exactly that. We would love the opportunity to talk with you, learn your story, and let you know how we can help. If you’re ready to get started, give us a call today. We look forward to speaking with you soon.