The Ins And Outs Of Legal Separation In North Carolina: A Comprehensive Guide

Working through the complexities of legal separation in North Carolina can become overwhelming when trying to understand the specific laws and regulations that are associated with the process. If you think that separation is on the horizon, it’s important to understand the nuances it entails so you can navigate the road ahead with confidence. From eligibility requirements to the division of assets, child custody, alimony, and more, we’ll cover all the intricacies of separation in this comprehensive guide. Read below to dive into the ins and outs of legal separation in North Carolina!

What is Legal Separation In North Carolina?

North Carolina’s legal separation is different from most other states because a separation agreement or other written document is not required to be legally separated. To be separated in North Carolina, you simply need to be living under different roofs and at least one spouse needs to intend on the separation being permanent. 

While North Carolina’s 1-year separation rule is much longer than many other states, it is possible to figure out all the “stuff” before this year is done with a separation agreement and property settlement. While a separation agreement is not required to be legally separated in North Carolina, it is something we suggest for everyone who is, or who is planning to be, separated.  A separation agreement is  a contract between two spouses which can resolve most legal issues that are involved in ending a marriage. It may clarify terms for spousal support, child custody and support, property and asset division, and more. 

Legal Separation vs. Divorce: Understanding the Difference

Since legal separation doesn’t require a separation agreement, you might be wondering what it does require. In order to be considered legally separated in North Carolina, you and your spouse have to be living in separate homes and at least one of you has to have the intent for the separation to be permanent. 

For divorce (also known as absolute divorce) in North Carolina, you have to be living separately and separated for a year and a day. You or your spouse must have also lived in North Carolina for at least six months before the divorce was filed.

Whether you are planning to be or have already separated from your spouse, you should do so with the help of an attorney. Even if you and your spouse are on agreeable terms to start off, a lot can change along the way as the process unfolds. 

Divorce From Bed and Board in North Carolina

In rare circumstances, clients can also get what is called a Divorce from Bed and Board. This isn’t actually a divorce, but is a court-ordered separation. This is only available to those who can prove serious fault of their spouse for things like physical abuse, substance abuse, or infidelity in a marriage. It is most commonly used when a spouse, who is at fault, will not move out of the residence for the separation period to begin. However, just because a court grants you this separation order it does not mean you are divorced. You will still have to wait a year and go through the divorce process in order to not be married to one another. 

The Effects Of Separation On Spousal Support & Child Support

In North Carolina, spousal support takes on two different forms: post-separation support and alimony. Post-separation support is temporary and it provides a dependent spouse with monetary assistance during divorce proceedings so that they can maintain a reasonable standard of living. There are many factors that help the court decide how much is awarded in post-separation support, including each spouse’s earnings, debts, reasonable expenses, and financial needs.

In order to be eligible for alimony, the judge must determine one spouse is supporting and the other one is dependent. Before a judge decides on the amount for alimony, they determine whether there was any infidelity by either partner up to the date of separation. If the dependent spouse is guilty of adultery, the judge must deny alimony; if both were guilty, the judge can decide whether or not to award alimony. If the supporting spouse committed adultery, then alimony must be awarded. In addition to adultery, a judge will also consider other marital misconduct, the length of the marriage, each spouse’s age, well-being, liabilities, finances, and other factors. 

Child support is another aspect of separation that a separation agreement can be used for. It allows parents to agree on a set amount of financial assistance from either parent. Parents can also sign a voluntary child support agreement, or if a former spouse is non-compliant, the other spouse can file a complaint with the court for child support. An attorney will be helpful in making sure that you reach a fair and reasonable outcome when it comes to your children’s financial needs. 

How An Attorney Can Be An Advocate During Separation

Though a legal separation seems like a simple way to tie a bow on a complicated situation, the assistance of an attorney during this process can prove to be invaluable. It can be difficult to make important decisions like what will happen with your children, assets, property, debts, and other things when your head is clouded by the impact of this life transition. An attorney can help you separate emotions from facts so that you can ensure you’re understanding state laws and regulations, but also are aware of your rights and obligations during the separation process.