If you and your spouse have decided to part ways, you have some legal options in North Carolina. In order to seek a divorce, you and your spouse must first have been separated for a year. Once you and your spouse have been separated for a minimum of one year, you can then file for a no-fault divorce in North Carolina.
But there are two different avenues for a separation in North Carolina. Both of these processes serve distinct purposes and have their own legal requirements, protections, and implications.
What is Legal Separation in North Carolina?
Legal separation in North Carolina differs somewhat from other states. In order to be “legally separated” in North Carolina, no legal document is required. You and your spouse must merely live “separate and apart” in different homes, and one or both of you intend for this to be permanent.
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Do You Need a Formal Separation Agreement to be Legally Separated?
A separation agreement is a written, signed, and notarized contract between spouses that sets out the terms of your separation.
While executing a formal separation agreement is not necessary for you to be considered legally separated in North Carolina, having one can offer some legal protection. Once it is signed by both parties and notarized, your separation agreement becomes a legally binding contract that can be enforced by the court if one spouse violates your verbal agreements.
A separation agreement can also be a proactive and efficient way to resolve any divorce-related issues such as property division, child custody, child support, and alimony. Reaching these agreements now instead of relying on the court to resolve them during your divorce could result in fewer expenses and reduced stress during the divorce process.
How Do You Create a Separation Agreement?
Generally, a separation agreement will be drafted by your Charlotte family law attorney and include key elements:
- The identification of both spouses, with your full names and addresses
- The date of your separation
- A statement of intent, declaring both parties intend to live separate and apart
- How you will divide your property, assets, and debts during your separation
- How you will pay your bills during your separation
- Who will live in the family home
- Who will have legal and physical custody of your children
- Who will pay child support and how much
- Whether there will be spousal support and the amount, duration, and conditions
- How health insurance will be maintained for each spouse and your children
The agreement must be signed by both spouses and notarized. Each spouse should have it reviewed by their own independent attorney before signing to ensure that it is fair and nothing has been omitted.
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What is a Divorce From Bed and Board?
Another form of separation in North Carolina is to file for a divorce from bed and board. Contrary to its name, spouses who file for a divorce from bed and board remain married, but there are specific rules for filing and protections it provides.
A divorce from bed and board is a court-ordered fault-based separation and you or your spouse must claim grounds to file. These grounds include:
- Excessive use of alcohol or drugs that renders the condition of the other spouse intolerable and the life of that spouse burdensome
- Adultery
- Abandonment
- Maliciously forcing the other spouse out of the home
- Endangering the other spouse’s life by “cruel and barbarous treatment”
- Mistreatment of the other spouse that renders their conditions intolerable and life burdensome
Even though a divorce from bed and board does not dissolve the marriage, it is a legal court order and comes with obligations and protections that can be court-enforced when there is a violation.
Because a divorce from bed and board is fault-based, the at-fault spouse loses the ability to live with the other spouse or inherit their property without a will. The court may also issue temporary or permanent orders regarding spousal support, child support, child custody, and property division. Furthermore, these grounds may also impact how the court will make decisions and awards in the event of a subsequent divorce.
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Divorce in North Carolina
Divorce, known as “absolute divorce” in North Carolina, is when your marriage is officially dissolved.
Grounds for absolute divorce in North Carolina are not fault-based. Instead, the only grounds recognized for an absolute divorce are:
- A one-year and one day separation where spouses live separate and apart with the intention of ending their marriage
- Incurable insanity where one spouse has been confined to a mental institution or declared incurably insane for at least three years
While there are no fault-based grounds to seek an absolute divorce, the grounds used in seeking a divorce of bed and board can be relevant in the court’s decisions regarding alimony, custody, and property division during the absolute divorce proceedings. Understanding these distinctions and how they may affect your divorce can be critical. Consulting with an experienced Charlotte divorce attorney will provide legal guidance that will be tailored to your unique circumstances.
What are the Key Differences Between Legal Separation and Divorce in North Carolina?
Separation and divorce are nuanced in North Carolina, but there are key differences between them.
Marital Status
The most significant difference between separation and divorce in North Carolina is your marital status. Legal separation allows you and your spouse to live separately, but you remain legally married with the rights and obligations of that status. Absolute divorce dissolves your marriage altogether, and you and your spouse become single individuals.
Remarriage Rights
Because separated spouses are still considered married in the eyes of the law, they cannot legally remarry someone else. Absolute divorce terminates the marriage, allowing both parties to remarry if they choose.
Property Rights
Until the divorce, separated spouses generally retain their marital property rights. A separation agreement may have provided for some division of assets, or the court may have issued orders, but these may be modified if you and your spouse reconcile or ultimately decide to divorce. In divorce, property division is considered final, and each spouse’s rights to marital property is permanently resolved.
Spousal and Child Support
While both separation and divorce can involve orders for spousal and child support, duration and terms will likely differ. In a legal separation, support orders may be temporary or permanent, depending on the situation. Support orders in a divorce become part of the final judgment and can only be modified under certain circumstances.
Child Custody and Visitation
Custody and visitation arrangements can be established in both separation and divorce. When the court is involved, the best interests of the child will be their priority when making their decisions.
Getting Legal Guidance
While separation and divorce are distinct processes in North Carolina for couples who wish to end their marriage, their protections and consequences are very different.
Getting the legal guidance of an experienced Charlotte family law attorney can help you evaluate whether you would benefit from a simple separation into an absolute divorce or whether you would benefit from seeking a court-ordered divorce from bed and board in your circumstances. At Melone Hatley, P.C., our skilled Charlotte divorce lawyers are here to help you understand your rights, make sense of your options, and work diligently toward your best outcome. Call us at (980) 400-9847, or contact us through our website contact form to schedule a free consultation.
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