Legal Separation vs. Divorce in North Carolina

Posted by Josh Valentine | Jan 01, 2019

Legal separation and divorce are two different things in North Carolina. You can be legally separated from your spouse without ever divorcing, but you cannot file for divorce without having been legally separated.

Here's what you need to know about legal separation vs. divorce and how each process will affect you.

Legal Separation vs. Divorce in North Carolina

Technically, you don't need to file any paperwork with the state of North Carolina to become legally separated. If you want a divorce, you do have to file paperwork with the court – and a judge must sign it for your divorce to become official.

You can file a separation agreement, but it's not mandatory. However, the court won't honor verbal agreements. Everything has to be in writing, so it's in your best interest to complete a separation agreement as soon as possible.

The Legal Definition of Separation

North Carolina law considers separation to be when two married people move into separate residences, provided one of them has the intent of “living separate and apart.”

Before you move out of your marital home, it's in your best interest to talk to an attorney. Your attorney can draft a written agreement that protects your rights and your children's rights.

Do not sign a separation agreement your spouse gives to you without reading every letter of it first. Even better, run it by your lawyer to make sure it's fair before you sign the dotted line. Once you and your spouse both sign the separation agreement in front of a notary, it becomes a legally binding document.

Do You Need to Be Legally Separated Before You Can Divorce?

North Carolina law requires you to be separated from your spouse for at least a year and one day before you can petition the court for a divorce. Your legal separation begins on the day one of you moves out and into a separate residence, while one or both of you intends for it to be permanent. You don't need to have a separation agreement before you move out, but it's in your best interest to have one in place.

For the most part, you can't live in the same house and still be considered legally separated. While the court can grant an exception to that requirement, it's really only reserved for people who live in independent, unconnected living spaces (like duplexes or apartments). Each person must live in a separate part of the home, and there can't be any shared common areas inside.

Legal Separation: An Agreement Before Divorce 

You can use a separation agreement to hash out a lot of the issues you and your spouse will need to settle before the court grants you a divorce. You can address things like:

You and your spouse are free to agree to nearly anything you'd like in your separation agreement. However, if you intend for your separation agreement to carry over into your divorce, you must make sure that it's fair and equitable to both parties – and that it's fair to your children, as well.

Your lawyer will advise you to reach these agreements long before you go to court. That's because litigation – fighting things out in court – is costly and time-consuming. The more you can settle now, the better. It also helps keep all the major decisions surrounding your divorce in your hands rather than in the judge's hands, which means you're in control of the outcome.

Can You Be Legally Separated Without Eventually Divorcing?

You can be legally separated from your spouse without ever divorcing. In fact, some couples use legal separation to avoid divorce, whether for cultural or personal reasons. 

Do You Need to Talk to an Attorney About Legal Separation vs. Divorce?

We can answer all your questions about legal separation and divorce. Just call us at 704-470-2440 for a consultation with a divorce attorney so we can give you case-specific advice today.

About the Author

Josh Valentine

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits, and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person who was best situated to provide that vital support was their lawyer. So that’s why I became an attorney. I understand what you are going through, and I’m here to help you. Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life.” Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar