When Are We Legally Separated?

Without question, divorce is a complex and often confusing process. In truth, however, beyond the process itself being confusing, what is actually required as couples lead up to and prepare for beginning that process can be confusing as well. Many states require that couples be separated for a specified period of time leading up to their divorce, and North Carolina is no different. Often, we receive questions about separation prior to divorce. Many couples want to understand what constitutes a legal separation, and how this affects the eventual divorce process.

In North Carolina, a couple is considered to be legally separated on the date that a husband and wife move into separate residences with the intent to continue living apart from one another on a permanent basis. There are three primary components necessary to establish this legal separation:

  • Physical Separation: Under the eyes of the law, physical separation means that two spouses live in separate homes. Often, spouses wonder if they live in the same home, but reside in different bedrooms, whether this will constitute physical separation. Typically, this is not considered to be the case. Moving to residences at separate locations is usually advised.
  • Intent of at Least One Spouse: At least one spouse must have the intent to be legally separated, and for the separation to be permanent. If this intent is present, and both spouses live in separate residences, it is not necessary for both spouses to want the separation. The desire and intent of one party to the marriage is sufficient.
  • Length of time: In North Carolina, a couple must be legally separated for at least a year and a day before they can officially file for divorce. After doing so, they can begin to move forward with the divorce process.

Even after understanding the general components of legal separation, however, couples understandably often have other questions regarding legal separation and what it may or may not entail. Some of the topics about which we most commonly receive questions include:

  • Dating: One of the questions we are most commonly asked is, “How soon can I begin dating after we legally separate?” While this question is understandable, particularly if a marriage has been rocky for some time and the couple truly has no intent of reuniting, dating should generally be avoided until a divorce becomes official. The reasons for this are many. First and foremost, under North Carolina law, a sexual relationship with a third party while you are still married is technically considered adultery according to the law. Although it is only classified as a minor criminal offense, it could still have a negative impact on other issues – the determination of child custody, for example – that may be very important to you. Moreover, and particularly if you had an illicit relationship with the person you now want to date prior to your separation, deciding to date that person before your divorce is final may arouse suspicions on the part of your spouse that lead your spouse and his or her attorney to investigate further. If an affair is discovered, it may serve as grounds for your spouse to file an alienation of affection or criminal conversation lawsuit, not to mention the way it might impact your divorce case in other negative ways. If you truly want to pursue a new relationship, and if that relationship is right for you, the opportunity will still be there after your divorce. It’s best to wait until the time is right.
  • Can a court legally order a separation if one spouse will not agree? Yes, although this is not typically done often. This is typically accomplished through a “divorce from bed and board”. In some very unusual circumstances, a judge may grant a divorce from bed and board and grant possession of the marital home to one party pending the entry of an official divorce degree, but again, this is not done often. Typically, couples come to an agreement on their own that separating is best.
  • What is a separation agreement, and do we need one? A separation agreement is an agreement that the parties choose to enter into either just prior to, or during the early stages of separation, addressing the important issues between them, particularly those that will be immediately relevant. It may, for example, include provisions about temporary child support or alimony payments, who will remain in the marital home, how the parties will share custody of their children during the separation period, and any other matters that will be of immediate importance to the parties. While a separation agreement is not required it can be very helpful, particularly if the parties draft it with the assistance of their attorneys and in a cooperative and amicable way. As the divorce process eventually proceeds, if the terms of the separation agreement are working well for the parties and their lifestyle, they can ultimately decide to incorporate them into their final divorce settlement agreement. On the other side of the coin, if the terms of the separation agreement are not quite working as the parties have envisioned, they will have the opportunity to modify those terms and agree upon more satisfactory long-term arrangements if they wish.
  • What happens if we decide to reconcile after our separation? Sometimes, even though separation initially seems like the best path forward, some couples later realize, after experiencing separation for a time that it is not what they truly want after all. Of course, spouses are always free to reconcile at any time after separating. When spouses do reconcile, the “clock” for divorce essentially resets. That means that if the spouses later decide again to pursue to divorce, the necessary one year and one day time period will begin again.

As noted, the separation period must last for at least a year and day before a couple can move forward with finalizing their divorce. While a year and a day may seem, in some ways, like a long time, it is also time that can be very well used by the parties. It is a time that the parties can think through, ideally in a collaborative and cooperative way, how they ultimately want to resolve and address the issues between them.

North Carolina is someone unique among the states in that if the parties truly want to, they can essentially keep issues of property, custody, and support from coming before a court. The parties can choose to privately enter into a divorce settlement in which they resolve the issues between them in a way that is satisfactory for everyone involved. Settlement is often preferable for a wide variety of reasons, including that it is less costly, more efficient, and less emotional draining than traditional litigation.

In the end, the legal separation period may be difficult, but if used wisely, it can be very beneficial and helpful time to think through the way you ultimately want to resolve the issues in your divorce, and to do so in an amicable way with your spouse, so that everyone feels satisfied with the result in the end. Needless to say, having an attorney who understands the nuances of the law, and will be able to help you apply it to your particular circumstances as you go through your separation and eventually move toward divorce is invaluable. At the Law Office of Dustin S. McCrary, we’re here to help. Call us today.

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