Family Law

Separation & Divorce

Am I Separated?

One of the first things we are often asked is, “How do I get legally separated?” The answer is easy … you don’t. (See our video answer.)

In North Carolina, there is really no such thing as a “legal separation,” – there are no forms to complete and no judge must pronounce that you are separated. Here, you are separated when you are no longer living under the same roof as your spouse and one of you has the intent for the marriage to end (See NC Gen. Stat. Sec 50-6). Notice the same roof language – it is not enough to move into the basement or the guest room. Also, much to the dismay of many, not having sex for a long time doesn’t mean you’re separated either. 

Obviously, this definition raises more questions than it answers. For example:  1). do I move out? 2). how do I afford to move out? 3). where do my kids go? etc. There are no easy answers to those questions. Trying to decide who leaves the home and what happens when they do is one of the most challenging things a lawyer helps a client decide. 

Getting separated is a great example of when simply knowing a rule doesn’t matter. It’s how you apply the rule that affects everything going forward.

Why it matters:

  1. Absent extraordinary circumstances, you cannot run to the courthouse and file an action for child custody and/or child support if you are not separated.
  2. You cannot ask a court for post-separation support, alimony or equitable distribution until you are separated. (See NC Gen. Stat. Sec 50-16.3A and 50-20)
  3. In North Carolina, you only have a brief window of time after you sign a separation agreement to physically separate.
  4. Unless your spouse suffers from “incurable insanity,” you cannot get an absolute divorce unless you’ve been separated for 365 days. (See NC Gen Stat. Sec. 50-5.1)

In North Carolina (absent ‘incurable insanity’) you can not get a divorce until you have been separated for 365 days.  In most cases, all other issues arising from your separation (child custody, child support, alimony, and property division) have been resolved before you are eligible for a divorce.  The specific procedure for getting divorced varies a little from county to county but the general rules are the same.  Please see the section below “How do I get Divorced?”.

You May Be Wondering...

Q & A

What is a separation agreement and why do I need one?

Most people can settle most, or all, of their issues by agreement. Despite numerous paragraphs full of necessary legal jargon, at its most basic level a separation agreement is simply a written contract between spouses who have either separated or are contemplating an immediate physical separation. A valid agreement must be 1) in writing and 2) notarized.  (See NC Gen. Stat. Sec 52-10.1)

The agreement may address child custody, child support, alimony, property division, taxes, attorney fees and other important issues like health insurance and college education. As with most things, there are pros and cons to resolving matters in a separation agreement. Before you enter into an agreement, you should discuss these issues with an attorney.

How do I get divorced in North Carolina?
If you’ve been separated for 365 days, you (or your spouse) may file a Complaint for absolute divorce with the district court of the county where you reside. Be sure you do not file until the 366th day or you will technically be a day early. (See NC Gen. Stat. Sec 50-6)

After filing, you’ll need to serve your Complaint on your spouse. Your spouse then has 30 days, which can be extended 60 days, to file an Answer. Keep in mind an Answer doesn’t mean they get to object or stop the divorce; North Carolina is a no-fault state and it does not matter if your spouse consents to the divorce so long as you met the 365-day separation requirement. 

After this step, each county procedure varies; in some you appear in court for a brief hearing where a judge asks you about 10 questions and then enters your divorce in open court. In other counties, all you do is submit particular paperwork and wait until you get your absolute divorce back in the mail. 

Simple, right?? In many ways, yes. In fact, we often tell people the divorce itself can be anti-climactic since you have typically handled many, if not all, of the other issues in the year you’ve been waiting. However, if a divorce is entered before you’ve resolved the issues of alimony or property division (equitable distribution), then you’ll be barred from dealing with these issues going forward. It is the one mistake people make that we truly can do nothing to fix. So please reach out to a divorce attorney at Church Watson Law before you file. A brief consultation can ensure that everything is good to go and that your potential claims are protected.

What is a divorce from bed and board?
A divorce from bed and board is not really a divorce at all; it’s a judicial separation based on fault. (See NC Gen. Stat. Sec 50-7) Basically, the statute is supposed to give people in destructive or abusive situations a way to be separated without being physically in different places. Generally, there are two problems with this: 1) people ask for a divorce from bed and board so the judge will make the other person move out; but judges won’t really make them move and 2) the court system is so slow that the case can take months to actually be heard.

We are not saying this course is never necessary, just that it’s a rare set of facts where it is useful. Filing for divorce from bed and board can put you on a lengthy and expensive path. Please talk with us before you decide to seek a divorce from bed and board.

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