Physical Separation Before Filing for Divorce

Divorce in North Carolina is not a quick matter. In North Carolina, the couple must be living separately for one year before they can file for divorce. Many other states have no separation or waiting period to file for divorce. For example, neighboring South Carolina and Virginia have a similar one-year requirement but states like Tennessee and Georgia have no separation period to file for divorce. 

It is important to understand the physical separation requirement before filing for divorce or you or your spouse may unknowingly resent the one-year time period. Talk to your experienced North Carolina family law attorney about your case, your options, and how to prepare for a divorce. 

Separation for Divorce in North Carolina 

Under G.S. § 50-6, “marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year.”

One of the reasons North Carolina has a separation requirement is to allow for reconciliation in a relationship. Some couples may encounter differences or problems in the relationship and the immediate reaction to want to break up or get a divorce. Over time, the couple may work on their relationship and decide that staying married is the best option. A separate living requirement can allow time for the couple to think about divorce. 

Unfortunately for many couples, the separation requirement simply delays the inevitable. Divorce is not a decision taken lightly, and when one or both spouses decide that a divorce is the best option, the separation requirement means that they will not be legally divorced for at least one year from the date the couple begins living separately. 

Living Separately and Not Under the Same Roof

Generally, living separate and apart means living in a different residence. It may not count as living separately if the couple is under the same roof. For example, a court may not consider the separate living requirement met if on spouse: 

  • Sleeps on the couch; 
  • Sleeps in a separate bedroom in the same house; or
  • Spends most nights away from home but come to the residence occasionally to stay the night. 

If the couple both agree that they have been living separate and apart for more than a year, the court may not require evidence of separate living. However, if one party disputes that the separate living requirement has been met, the other spouse may have to show evidence of living in a separate residence. In either event, the separate living spouse should keep evidence of living separately, such as: 

  • Rental agreement,
  • Utility bills, 
  • Insurance or bank statements, or
  • Voter registration. 

Resumption of Marital Relations

Under G.S. § 52-10.2, resumption of marital relations is the “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” Factors in whether a couple have resumed their relationship may include: 

  • Moving back into the family home; 
  • Resumed cohabitation; 
  • Time period of “reconciliation;”
  • Holding themselves out to be husband in wife in public; 
  • Indicating to family and friends that the separation issues have been resolved; or
  • Regular resumption of sex.  

However, “isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” It is not uncommon for a couple to have a couple of isolated intimate encounters during their separation period. These alone are not enough to “reset” the one-year separation clock. 

Physical Separation is Not the Same as a Legal Separation

A legal separation is not the same thing as the physical separation requirement. Separate living for one year is a requirement for all divorces in North Carolina. A legal separation is known as divorce from bed and board. Divorce from bed and board is based on fault in North Carolina. Under G.S. § 50-7, the court may grant a divorce from bed and board if either party: 

  1. Abandons the family. 
  2. Maliciously turns the other out of the home. 
  3. By cruel or barbarous treatment that endangers the life of the other. 
  4. Offers such indignities to the other person as to render their condition intolerable and life burdensome. 
  5. Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome. 
  6. Commits adultery.

After the court grants a divorce from bed and board, a spouse may still seek alimony, child support, property distribution, or child custody. However, if the spouse ever wants to remarry, he or she would have to get an absolute divorce. 

North Carolina Divorce Attorneys

Living apart for a year will give you time to prepare for a divorce, including figuring out child custody, property division, and alimony payments. It will also give you time to work with your divorce lawyer to make sure everything is in place to make the difficult process go as smoothly as possible. If you have any questions about divorce in North Carolina, contact the Caulder & Valentine Law Firm, PLLC. Contact us online or by phone at 704-470-2440 today for a consultation.