Like married couples everywhere, spouses in North Carolina sometimes decide that the union isn't working out. Living separately is an option in North Carolina and, in fact, a requirement for an absolute divorce. However, the state does not recognize "legal separation" as a separate marital status.
What Is a Legal Separation?
In many states, couples who are ready to call it quits have two choices: they can get a divorce or they can get a legal separation. Divorce is available in all states, a legal termination of the married state. Assets are divided, family support is set up, and child custody and visitation rights are established.
After a divorce is final, the two former spouses are each free to marry someone else. If one spouse changed their family name, they can ask for their former name to be restored.
A legal separation in the states that recognize it looks a lot like a divorce. The couple go their separate ways, the assets are divided, child and spousal support is set up, and custody and visitation orders are made. However, the couple does not dissolve the marriage, which means that they technically remain married and neither can marry another.
Benefits of Legal Separation
Who would opt for this kind of a legal separation? Generally couples choose a legal separation when they or their family have strong religious objections to divorce. But sometimes legal separation is preferable for a couple because the employment of one provides medical benefits for the other that might otherwise be prohibitively expensive. Social Security benefits or tax benefits can also impact the decision.
In addition, in states that permit this type of legal separation, a court will address and rule on all of the issues that are difficult for a couple to resolve, like child custody issues, division of marital property and family support. Just like in a divorce, it's easier and cheaper if the spouses can agree on the issues.
If they don't agree, each spouse in a legal separation proceeding presents their best arguments to the court, and the court makes a ruling that binds both of them.
Legal Separation Not Recognized in North Carolina
Note that legal separation status is not authorized in some states, leaving the unhappy couple with the choice of beginning a divorce proceeding or staying married. North Carolina is one of them. The state also imposes a significant waiting period before a couple can get a divorce.
Divorce Waiting Period
Although every state in the union permits married couples to divorce, some make this process more difficult than others. Those states with easy divorce requirements and low residency requirements – like Nevada – become go-to destinations for quick endings.
If a couple wishes to divorce in their own state, the time it will take and the hoops they must jump through depend entirely on that state's laws.
Many states underline the seriousness of ending a marriage by requiring a waiting period between the time divorce papers are filed and the moment the divorce is official. California, for example, makes a divorcing couple wait six months before the court signs the final papers; in Nevada, a divorce can be finalized in as little as a week. North Carolina is at the other end of the spectrum.
North Carolina Divorce Waiting Period
North Carolina law includes one of the longest waiting periods for a divorce of any state. The state permits a couple to file for an absolute divorce only after the spouses have lived apart for over a year, that is, at least 12 months and one day.
This year of separation must be intended as a prelude to divorce. If both spouses consider the time apart to be a "trial separation," it doesn't count toward the North Carolina waiting period.
To fulfill the 12 months and one day separation period, at least one of the two spouses must intend from the first day that the separation is permanent and will lead to divorce. And note that living apart is an essential element of the waiting period as well. Even if the couple owns a huge house and each lives in a different wing of the home, it does not count as a separation period for divorce purposes.
Living in Separate Residences Required
The separation is only "legal" in North Carolina for divorce purposes if the couple lives in separate residences for over 12 months and at least one of them enters into this separation with the intention of making it permanent.
The couple does not need to file any document with the court to signal that they are separating in contemplation of a divorce. They need not pay any fees or sign a separation agreement; they need only be prepared to swear under oath when they file for divorce that they were separated for over 12 years or come up with a dated separation agreement.
Downsides of North Carolina's Legal Separation
North Carolina's separation requirement is extremely different from the type of legal separation offered in other states. Those whose religions forbid divorce cannot look to North Carolina's separation requirement as an acceptable divorce substitute, since it is only "legal" in the state if it is preliminary to a divorce.
Likewise, it will not help a spouse who needs to remain technically married to keep coverage on their spouse's health insurance.
Moreover, it can be difficult to work out living arrangements and finances during the 12 months and one day separation period. While living apart may not be difficult for a couple without minor children where both spouses work and keep separate finances, it requires much more effort when there is a family involved.
Family Support and Custody Orders
Although the couple cannot file a divorce action until the separation period is passed, the court will hear requests for family support and/or custody orders during the separation. But this type of motion may require hiring an attorney.
Negotiating a Separation Agreement
Practically, a couple with kids or blended finances will need to negotiate a separation agreement to cover finances, child care and other issues during their 12 months apart. When the divorce is amicable and both spouses desire it, they may be able to sit down and work out an agreement.
To be a binding contract, the North Carolina separation agreement must be in writing and signed by both spouses in front of a notary.
Provisions to Include in a Separation Agreement
A North Carolina separation agreement is a private contract between the two spouses; it is not a court order. It is typically negotiated when spouses plan to separate. The written agreement includes the terms that the two agree on regarding issues related to the separation.
For example, the agreement can set out which spouse is responsible for certain bills, which spouse will live in the marital home, and where the children will live. Typically, the agreement also includes property division and family support.
The couple can include provisions for child custody and child support in a separation agreement, but if either parent later files a child custody case in the divorce case, a judge can order a different custody arrangement if it is in the child’s best interest. Child support can also be altered by the court if a parent files a child support case.
DIY Separation Agreement
If the pending divorce is amicable, and the couple decides to prepare their own separation agreement in North Carolina, they can find various resources online to help. The state does not offer forms that might assist a separating couple, but looking online will locate templates and forms for getting started.
Another option is to review separation agreements negotiated and filed by others. Just visit the county courthouse and ask to see some divorce files. The biggest advantage – perhaps the only advantage – to drafting the agreement without the help of an attorney is the fact that doing so will be inexpensive.
Hourly rates for small firms in North Carolina are not the highest in the nation, but they still run about $250 an hour, and the hours can add up fast.
Using an Attorney to Prepare Agreement
Most separation agreements in North Carolina are the result of work by family law attorneys. And despite the expense, this can be the best way to go.
If the situation is amicable, they can keep the costs down. They can hire one attorney for the two of them and ask that attorney to tailor the separation agreement according to the desires of the couple and the needs of the family.
The biggest advantage of hiring an experienced family law attorney is that the professional will be familiar with the separation process of absolute divorce in North Carolina. They will also be familiar with state laws about property division in divorce, knowledgeable about child custody rules, and fully aware of the topics that should be addressed in the separation agreement.
Sharing a Divorce Attorney
Sharing an attorney does not work for every couple. Sometimes the spouses start with such differing visions of what the separation finances will look like that it is difficult to see them sharing an attorney.
In circumstances like that, it is entirely possible for each spouse to select their own attorney to represent their interests during the divorce process. In this case, the attorneys negotiate with each other to get the best deal for their clients that is consistent with the law.
A primary disadvantage of each spouse having their own attorney is the financial aspect; the couple will have to pay the fees of two divorce lawyers. In addition, the attorneys may feel the need to compete to try to get the better deal, racking up more hours than necessary.
Finding an Attorney
Finding a lawyer is usually a matter of talking to family and friends and getting a few recommendations. Generally if people have a positive experience with an attorney they are happy to recommend them.
If this doesn't work out, visit the website of the North Carolina State Bar, the governing body for lawyers in the state. It keeps a list of lawyers online who are certified specialists in different areas of law, including family law.
Another option is to call the North Carolina Bar Association, a private statewide lawyers’ organization. They have a Lawyer Referral Service and participating attorneys charge no more than $50 for an initial, 30-minute consultation. Call them at 800-662-7660 for a referral.
Finalizing a Separation Agreement
Once the spouses agree on the terms of a separation agreement, it must be printed out in final form and reviewed by the parties to the agreement and their attorneys. When all is reviewed and agreed upon, the spouses sign the agreement before a notary.
The signed, notarized agreement should then be filed with the county's register of deeds. There is a per-page fee for filing.
- North Carolina Judicial Branch: Separation and Divorce
- The Hart Law Firm: Legal Separation in North Carolina
- North Carolina Courts: Finding an Attorney
- Doyle Divorce Law: What Rights Does a Legally Separated Spouse Have in NC?
- Attorney at Work: Solo and Small Firm Hourly Rates: Winners and Losers, by State and Practice Area
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.