One of the cardinal qualifications of an absolute divorce in the state of North Carolina is undergoing a legal separation. For the purposes of this article, we will address (1) what constitutes an official legal separation in the state; (2) separation agreement options available for state residents in pursuit of a divorce; and (3) the advantages an attorney can provide for parties who wish to legally separate.
What Constitutes Separation in North Carolina?
According to North Carolina law, a married couple is technically legally separated when they have been living physically apart in different residencies for one year and a day. One party must have initiated the separation with the intention of remaining apart permanently. No official documentation or filings must be submitted to legitimize a separation.
In rare cases, a small minority of couples have been granted the exception of being deemed legally separated while living in the same residence. However, in these circumstances, the residencies were essentially segregated into two unconnected, independent habitations. This means that each party is required to have their own bathroom, kitchen, bedroom, living room area, etc. Couples who are relying on this exception to qualify for an absolute divorce should contemplate the inherent risk of encountering a presiding judge who may not consider this separation legally valid.
Separation Agreement
Although a separation is not mandatory and does not influence a couple's ability to obtain a divorce, it is useful in cases when couples aspire to resolve potential crucial issues that could arise in the midst of a legal separation and in the process of a divorce. In essence, a separation agreement is a legal contract that settles the details of several aspects of a divorce, such as child custody, alimony payments, and property division. This option is ideal for parties who wish to avoid litigation. Since oral agreements are not enforced by a court, acquiring a separation agreement is strongly recommended.
Why do I need an attorney?
When the nature of a marital relationship is cordial and open, both parties may only need the assistance of an attorney prior to and during the drafting of a separation agreement or moving to their respective residences. The divorce lawyer can help them understand their rights and protections to which they are entitled. But in most cases, one party may need an attorney to be in charge of settling negotiations in light of his or her own personal interests and concerns. The help of a divorce attorney is especially suggested in cases where the parties have thoroughly conflicting opinions regarding the specifics of the divorce, one party to the divorce feels disadvantaged when negotiating with the spouse on his or her own, or the parties share an ill-natured relationship.
Experienced North Carolina Family Law Attorneys
If you are separated or are contemplating separating from your spouse, you should consult with an experienced attorney who is well-versed in the complex intricacies of North Carolina's family law. A legal professional can assist you in creating a separation agreement, or simply ensure that your concerns are acknowledged in the process of a divorce. Contact the attorneys at Caulder & Valentine today for a consultation.
