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.