Filing for Separation in NC

What is Divorce from Bed and Board in NC?

If you and your spouse are facing the prospect of divorce and no longer wish to live together, there are two ways you can separate. First, you can simply live apart for one year and one day. Second, you can file for a divorce from bed and board. If you are ready to separate or divorce, contact a Cary separation lawyer for a consultation. Triangle Smart Divorce is here to guide you through the separation and divorce process and make sure you have as much control as possible over your situation.

Legal Separation in North Carolina

It is important to note that legal separation does not exist in North Carolina in the same way it does in many other states. Here, the majority of couples will opt to satisfy the separation requirement by simply living apart. In some cases, however, a divorce from bed and board will be necessary to establish the separation.

However, in North Carolina, if you file for a divorce from bed and board, you will need to allege and prove fault, such as abandonment, adultery, one spouse throwing the other out, intolerable and burdensome behavior, your spouse endangering your life, or your spouse having a substance abuse problem. If the Court grants your divorce from bed and board that does not mean you are divorced, it is simply a court-ordered separation. You still have to go through the divorce process to no longer be married to each other.

A divorce from bed and board is not an actual dissolution of marriage, but rather a legal separation mandated by the court. Couples who obtain a divorce from bed and board can live apart while still being bound by the legal ties of marriage.

What is a Separation Agreement and Property Settlement?

A separation agreement and property settlement is a contract between spouses who intend to separate or have already separated from each other. Most people shorthand these as “separation agreements.” They are a way to privately and efficiently resolve divorce-related issues, such as child custody and support matters, division of property, and spousal support. If you and your spouse cannot agree on everything, it can include only those items you agree on and leave the rest to arbitration or Court.

While you do not need an agreement in place to separate in North Carolina – you just need to live in separate homes for a year – most people prefer to have a separation agreement put into place. Separation agreements can significantly lower costs and help lessen the stress of a divorce, especially if children are involved. It is also a smart move, as it protects you now and in the future. It is a legal contract and once signed by both parties it can be enforced in Court if either spouse does not comply. Lastly, putting a separation agreement into place gives you the power. You, with your spouse and lawyers, get to make decisions about your future, and what is best for you, not a judge.

Do I Need a Separation Lawyer?

You are not required to have a separation lawyer; however, if the relationship is contentious, it is smart to have a Cary separation lawyer help you draft a separation agreement. Additionally, if you decide to file for divorce from bed and board with the Courts, you should consult with a separation attorney. Even if you and your spouse seem to get along, it is better to have an agreement now instead of waiting to file for divorce. A lot can change in a year.

Additionally, because it’s not uncommon for a friendly relationship to become contentious during the separation and divorce process, having a Cary separation lawyer help you draft a separation agreement gives you – and your spouse – something to fall back on should you disagree about child custody, spousal and child support, or division of assets.
A Court cannot enforce what doesn’t exist. If you do not have a separation agreement in place, the Court cannot protect you. An agreement binds you and your spouse to certain actions, and you can get the Court involved if your spouse breaks the agreement.

Think of your marriage as a business. In a business, you would have a contract between business partners to protect each other in the event something goes wrong (like a prenup for a business). You would have negotiations if the business relationship was over and you didn’t have a business “prenup.” The same is true here. Without a prenup in place, you have to negotiate the rights and responsibilities of each spouse, or else, seek Court involvement.

What Constitutes Separation in North Carolina?

If you want to separate, you must live in separate homes (with the intent of at least one of you for the separation to be permanent). Living in the same home but in separate bedrooms is not considered a separation in North Carolina. Some parties might live in separate houses on the same property, but the Courts might not deem this a true separation. It is better if one spouse moves into a separate house on a separate property.

If you decide to reconcile and then separate again, you have to start over with the year requirement. The law does not consider occasional sexual encounters with your spouse as reconciliation. However, if you are sure you want a divorce, it is better that you have nothing other than a platonic relationship with your spouse so there is no misunderstanding of “occasional.” Your definition of occasional might be different from the Court’s definition. And, your definition of “reconciliation” might be different as well. You should meet with a Cary separation lawyer to know how to protect yourself and not stop the year’s separation clock.

You can also divorce from bed and board by filing an action with the Court. This is not a common method of separation due to the requirements for fault being only one-sided in the marriage. Most people just live apart for a year. Regardless of if you are going to wait to file for divorce or instead file for divorce from bed and board, one of you must have lived in North Carolina for at least six months.

Do I Need to Be Legally Separated Before Filing for Divorce?

You do not have to file anything to be separated in North Carolina. However, you must be physically separated for at least a year before you can file for divorce. At least one of you must have the intent for the separation to be permanent. When you or your spouse moves out of the marital home, make a note of the date. A year and one day from that date, you can then file for divorce.

Finding the Best Cary Separation Lawyer for You

When looking for a Cary separation lawyer, you need someone who has vast experience in the family law arena, including drafting separation agreements and property settlements, to ensure that your rights are protected.

Even if your spouse’s attorney drafts the agreement, you should not sign it until you have an attorney check it over. Once you sign a separation agreement, it is very difficult to “undo” it. We’ve seen too many people lose a significant amount of money, time with their children, and assets by signing a separation agreement without consulting a lawyer. The money they thought they saved by not hiring a lawyer in the beginning pales in comparison to the legal fees in trying to set aside, challenge, or modify an agreement.

Triangle Smart Divorce is here to help you no matter where you are in the process. If you are thinking about separation, ready to separate, or want to file for divorce, contact a Cary separation lawyer for a consultation.


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