Legal separation in NC is a relatively straightforward concept: When a couple lives apart with no intent to reunite, they are legally separated. This can be done with or without a legally binding separation agreement, as a precursor to divorce or as a permanent solution to an unhealthy marriage.
There are many reasons why North Carolina couples choose legal separation. For many, it is the first step toward divorce. For others, it is a way to exit an unhealthy relationship without legally ending the marriage. Legal separation in North Carolina is a fairly straightforward process, especially when compared to legal separation in many other states.
TL;DR (Too Long; Didn't Read)
In North Carolina, couples do not need to file in court for legal separation. They can, however, file legal separation agreements.
Understanding Legal Separation in North Carolina
Legal separation in North Carolina does not start with an individual or a couple filing a separation document. Rather, it starts when one or both members of a couple move out of their marital home. To be legally separated, the couple must live in completely separate residences. Sleeping in separate bedrooms in one home does not make a couple legally separated, but living in two different houses on the same property or in two different apartments within the same multi-unit dwelling can.
When a couple legally separates, not much changes between them automatically – they can still file their taxes jointly, they can continue carrying each other on health insurance policies and they are still each other’s next of kin in all instances where it applies. The primary change is that any property either partner accrues after being legally separated is each's separate property, rather than marital property.
Filing for Legal Separation in North Carolina
There is no official process of filing for legal separation in North Carolina. Simply moving into separate residences renders a married couple legally separated. However, moving into separate homes does not impose any type of requirement on either spouse, nor does it trigger any of the protections that a divorce order does. Separated couples can protect themselves and their children legally through separation agreements.
A separation agreement is a document that covers all the legal aspects of the couple’s separation, including:
- A child custody schedule.
- A child support arrangement.
- A spousal support agreement.
- A distribution plan for the couple’s marital property.
Not every separation agreement includes all of these provisions. For example, a childless couple may opt to draft a separation agreement that only covers a property distribution plan. Some couples choose not to create separation agreements at all and instead, just physically move apart to begin their separation period.
When an individual or couple decides to create a legal separation agreement, discussing what to put in the agreement is the first step. When both partners can agree to specific terms for their legal separation agreement, filing one is a fairly simple process. If one spouse does not agree to the other’s proposed separation agreement and refuses to negotiate or sign it, the other spouse may file a petition to have a court order imposed to require compliance. This may be done to ensure that a couple’s children continue to be supported financially or to keep one spouse from depleting the couple’s joint savings.
When a couple agrees to create a separation agreement, it is often in both parties' best interest for them to work with individual lawyers. Although individuals and couples are not required to consult with lawyers to legally separate or create separation agreements, working with a lawyer can help both parties understand their rights and how the legal separation process works. To be legally valid, the separation agreement must be notarized.
The last step of filing for legal separation in North Carolina is actually to file the document with the court's office of the county clerk. The document must be filed with the county clerk of the county where the couple resides or if they live in separate counties, one partner’s home county.
Legal Separation and Divorce
Not all states require legal separation as a precursor to divorce, but North Carolina does. Before a couple can file for divorce, they must complete a legal separation period of at least one year and one day, or a total of 366 calendar days from the date they established individual residences.
If a couple has a separation agreement, they may use it as a guideline for their divorce order. In some cases, the couple copies their North Carolina legal separation agreement word-for-word to create a divorce order. In others, the couple’s lawyers advise them to agree to new terms for their divorce.