When am I Separated?

Broken Wedding RingOne of the most commonly asked questions we receive from our family law clients is “When am I legally separated?”  In North Carolina there are two requirements for a married couple to become separated:

1. The Husband and wife must be living “separate and apart” from one another.  North Carolina courts have interpreted “separate and apart” to mean under separate roofs.  One spouse sleeping in the guest room or on the couch is not sufficient.

2. One or both of the parties must intend to remain separate and apart from one another.  It is not necessary for this intention to be communicated to the other party.

On the date that both of these requirements are met, the couple is legally separated.

This date becomes important later, as the primary basis for absolute divorce (the legal termination of the husband-wife relationship) in North Carolina is a separation of more than one year.  Provided that the couple has remained separated for one year and has not resumed the marital relationship (isolated incidences of sexual intercourse don’t count – but aren’t a good idea – for a variety of reasons), a divorce lawsuit can be initiated at the end of the one year period.

We’re often asked whether any written document is required to establish the fact that a couple is legally separated.  In terms of establishing the date of separation for the purposes of obtaining a divorce, the answer is generally “No.”  However, often there are other reasons for establishing in writing that a couple is separated.  The most common of these is so that the couple can begin the process of dividing marital property.  Another reason is to establish each party’s rights and obligations related to custody and support of minor children.  

In these instances, the fact that the parties are separated is often established in a written agreement known as a “Separation Agreement”. A Separation Agreement is a contract between the husband and wife and is usually negotiated by the parties or their attorneys.  

Coltrane, Grubbs & Orenstein’s family law attorneys have years of experience in preparing and negotiating separation agreements.  If you’d like more information regarding the separation process, we’d be happy to assist you.  Please contact our office to schedule a family law consultation.

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