The Definition of Legal Separation in North Carolina

The concept of legal separation is essential in the context of North Carolina divorces. In the Tar Heel State, you must separate from your spouse for a period of one year before you can proceed with the next stage of your divorce. But what is the definition of legal separation? What “counts” as legal separation, and how can you ensure that you and your spouse separate properly without issues? What happens if you get back together with your spouse midway through the separation process, only to break up once again?

Questions such as these are probably best left answered by a legal professional, such as a qualified divorce attorney in North Carolina. These experienced lawyers can explain the various ins and outs of the legal separation process. They can also help you approach your divorce in the most efficient way possible. 

North Carolina is relatively rare in its approach to divorce. In many other states, a divorce can be wrapped up in a matter of weeks if both spouses act efficiently. In North Carolina, however, there is simply no way to get around the one-year waiting period. Only in extremely rare situations do judges waive the one-year waiting period and allow spouses to divorce at a faster rate. 

So, why does North Carolina do this? The general idea is that if spouses are given a one-year “cool down” period, they may conclude that a divorce is not necessary and that it is probably a better idea to try and fix the marriage and get back together. The state is essentially trying to encourage spouses to stay together. Although the government does not actively prevent spouses from getting a divorce, the hope is that they will get back together during the one-year period. 

Legal separation occurs when spouses move into separate residences and cease all marital duties. This means that in order for you to be legally separated, someone has to move out of the family residence. The mother often stays in the family residence with the children, although there are exceptions. Note that if you simply move into different rooms within the same home, this will not count as legal separation. 

The general idea is that you spend the entire year mostly apart from each other. Of course, you may need to meet up from time to time, especially if you have children. This is acceptable as long as you do not start acting like you are in a relationship and spending most of your time together. 

It is crucial that you have different addresses. If you do not have separate addresses, then the judge will immediately start to ask questions. Do not have your mail sent to your old home, even if it is more convenient. Ideally, you should rent or buy a property that is clearly under your name. You can use the rental agreement or the title as legal evidence of your separation. 

If you get back together during the one year, the assumption is that you have called off the separation. If you break up again, the clock resets, and the one-year period starts all over again. If you are serious about getting a divorce, you should probably try to avoid romantic encounters with your spouse, even if they are brief and meaningless. 

While a few isolated sexual encounters will not cause the one-year waiting period to “reset,” you still need to be careful. If your spouse suddenly decides that they do not want a divorce, they can argue that your romantic encounters during the separation period constituted a resumption of marital duties. This means that you may be unable to move forward with your divorce. 

You do not need any proof that you have separated for one year before moving forward with your divorce. However, most Marital Separation Agreements (MSAs) require spouses to put their addresses on the document. In addition, one spouse might try to argue that you got back together during the one-year waiting period, so you might need proof if you want to refute these claims. 

If you have been searching the North Carolina area for a qualified, experienced divorce attorney, look no further than Arnold Smith, PLLC. We are incredibly familiar with the unique aspects of divorce in the Tar Heel State, and we can help you move forward in a confident manner. Although small mistakes can be costly as you go through the divorce process, you can avoid these pitfalls by working with a legal professional. Reach out and book your consultation today.