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If you are considering divorce, or are in the midst of the divorce process, you may feel overwhelmed. That’s completely normal. Any legal matter can be complex, and divorce often involves many issues that can be emotional and complicated in many ways. Sometimes, people wonder – where do I even begin? How do I get started and take the necessary first steps? Those are important and understandable questions to ask. One topic that comes up often in the early stages of divorce is separation. Many couples wonder – how do we legally separate? And do we need a separation agreement to do so?

A Closer Look at Legal Separation

After you have considered your circumstances and really thought through what’s best for your family, if you decide to divorce, one of the first steps forward should be to begin what is known as a “legal separation”. What exactly is a legal separation? In North Carolina, what is typically required for a couple to receive a divorce is that they be physically separated for at least a year and a day without any intention of resuming their marriage. 

Generally, this means that one spouse moves out of the marital home and into another residence – or depending upon financial circumstances, the home might be sold and both spouses move to new places. Regardless of the logistical details, the intent is usually that separation be made intentionally, and with the purpose of moving toward a divorce. It is important to note that in North Carolina, you generally do not need a judge to officially “order” you to separate or enter any sort of “decree” of legal separation. There is only one limited exception to this rule.

North Carolina has a somewhat unique legal concept called “divorce from bed and board”. Divorce from bed and board is essentially a court-ordered separation that is used in circumstances where one spouse is making the other spouse’s life extremely difficult and burdensome through certain marital misconduct. These may be acts like infidelity, substance abuse, extreme addiction, or other misconduct that makes the other spouse’s life so intolerable that a court determines that a “divorce from bed and board” is warranted. Beyond a divorce from bed and board, however, there is no such thing as a court-ordered legal separation in North Carolina.

What’s in a Separation Agreement, Anyway?

At any point during the separation period, the parties may wish to enter into a legal separation agreement. While separation agreements are not required as a part of the divorce process, many couples do find them to be beneficial in addressing, even if temporarily, the issues that come with the separation period prior to divorce. Some of the issues typically addressed in a separation agreement can include:

  • Child custody and visitation
  • Child Support
  • Property division
  • Alimony
  • Intimate relationships, or bringing new partners around children during the separation process
  • Payment of various bills and division of income during the separation process
  • And more. 

Separation agreements can have several benefits, including:

  • Saving money: While almost every aspect of the legal process will cost some amount of money, generally, drafting an agreement out of court is far more cost-effective than paying to litigate and “fight it out” in front of a judge. Finding an attorney who knows and understands the law and who can help you draft an agreement that addresses your issues effectively and efficiently almost always saves you money in the long run when compared to what you would spend to litigate in a courtroom.
  • Freedom and flexibility: Addressing your issues through a separation agreement (and eventually, following your divorce, through an official settlement agreement) truly gives you the freedom and flexibility you need to work through your issues and find solutions that truly work for your family. After all, there is no judge in any courtroom anywhere who will know your family better than you do. If you can communicate and cooperate with your spouse to create an agreement that suits your circumstances, you’ll find that doing so is well worth the effort.
  • Life changes: Another benefit of entering into an out-of-court separation agreement is that when you want to change the agreement, the two of you can decide to do so, together. You don’t need the intervention or permission of the court. As anyone with children knows, life can change quickly, so having the ability to change your agreement as your life changes can certainly be beneficial. 
  • Confidentiality: Sometimes, people who aren’t familiar with the divorce process don’t realize right away that as with most legal matters, proceedings that occur inside a courtroom are, for the most part, considered to be public record. As a result, that means that matters you may wish to remain private become, in a very real sense, open to all who are interested. Many families going through a divorce would rather avoid that. By choosing to resolve issues through an out-of-court agreement, that the parties can agree will remain confidential, privacy is protected. 
  • Save time and reduce stress: Even in cases where judges try their best to be efficient, the simple truth of the matter is that fighting issues out in a courtroom can be time-consuming and stressful. Generally, legal matters take much longer to resolve in a courtroom than they do when parties attempt to resolve them privately on their own.

These are only a few potential benefits of many, and there are few if any “negatives” to speak of when it comes to clearly and thoroughly addressing the issues that matter most to you. If you decide that entering into an agreement would be a good step for your family, there are a few other helpful things to keep in mind.

A Few Other Reminders

First and foremost, if you decide that entering into a separation agreement might be helpful for your family, you’ll want to be certain to hire an attorney who knows and understands divorce law well, and who can guide you through the process. Even if you feel that you and your spouse can communicate well and work together cooperatively toward addressing your issues, you might be surprised at the legal nuances that arise, and the complexities that may be involved that you simply didn’t consider at first. Having a talented and experienced attorney to help you through the process is an essential part of ensuring that it goes smoothly and that you’re ultimately satisfied with the agreement you create. 

It’s also important to keep in mind that any separation agreement that you enter into must be voluntary. No one can be coerced into signing such an agreement, and if one spouse doesn’t want to participate in the process, he or she cannot be forced to do so. For all of the reasons we’ve discussed, it generally is a good idea to do so if both parties are willing – but that voluntary commitment by both spouses is necessary. If you’re both on the same page and willing to work together, though, a separation agreement can be a key part of helping the divorce process go more smoothly for everyone involved. 

The Law Office of Dustin McCrary – Here for You

Creating a separation agreement that truly reflects your intentions, embodies your parenting goals, and effectively addresses the issues that matter most to your family isn’t always an easy task. It’s a task that’s well worth the effort, though. Drafting an agreement that truly works for your family is one of the most essential components of effective and successful co-parenting, so it’s worth the time that it takes to get it right.

 To ensure that you do that, you need guidance and direction from a lawyer who truly knows and understands divorce law, and who can help you through the process each step of the way. At The Law Office of Dustin McCrary, we’re here to help you do exactly that. We’re passionate about taking a very complex and complicated process and guiding our clients through that process smoothly and successfully, and on to a better and brighter chapter ahead. We believe you deserve nothing less. 

Wherever you are in the divorce process, we’ll meet you there. At the Law Office of Dustin McCrary, we’re here to help. Call us today to discuss your case and learn how we might be able to help. We look forward to speaking with you soon.


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