Legal Separation

To qualify for an absolute divorce in North Carolina you must be legally separated for at least one year and a day. Legal separation occurs on the date when one or both spouses move into a separate residence with the intention of living apart permanently. You do not need a separation agreement nor do you have to file any papers or documents to be separated in North Carolina. Furthermore, having a separation agreement, in itself, does not create a legal separation.

*You cannot live in the same residence and be legally separated. In some cases, couples can be separated while living in the same residence if the residence has essentially been divided into two independent, unconnected dwelling units. This exception is very strict and requires that the spouses each live in a separate part of the home that is completely cut off from the other and that there is no overlap or common area. For example, each section of the house must have its own kitchen, bathroom and entrance, and there can not be free access between the units.

Reconciliation occurs if at any time the spouses move back in together or otherwise stop intending to live separately. While isolated instances of spending time together or even isolated instances of sexual conduct between the spouses does not necessarily count as reconciliation for legal purposes, it is best to avoid these activities if you know you do not want to reconcile with your spouse.

Although not required, many couples sign a separation agreement and/or a property settlement when they separate. A property settlement can be entered into at any time before, during, or after the marriage and can only deal with the couple’s property. It can be used to define rights in separate or marital property, such as who has the right to buy and sell what kinds of property. It can also be used to determine how property will be divided if the couples separate and/or divorce. A separation agreement can contain any terms the parties agree to, as long as they are not against public policy. Common terms include agreements about child support, child custody, and alimony. Unlike a property settlement, a separation agreement can only be made when the parties have already separated or intend to separate immediately after signing the agreement.

*Be sure to read over any contracts carefully or have an attorney review them. Once signed, these documents become legally binding.

At the time of legal separation a court can also decide on temporary child custody, child support, post-separation spousal support, division of debt, and property division.

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