In North Carolina, legal separation occurs on the date that husband and wife move into separate residences, with one having the intent to continue living separate and apart.
Husband and wife cannot continue to live together in the same home and be separated. They must live in different residences. Legal separation is often a precursor toward divorce, as divorce can be obtained after one year and one day of separation in North Carolina.
Legal Separation Agreement and Property Settlement Agreement
Many married couples enter into a Separation Contract, a Separation Agreement and Property Settlement (SAPS), or obtain a Court Order that details rights and obligations regarding child support, child custody, spousal support, division of property, and debt.
While a written agreement isn’t required to establish a legal separation in North Carolina, it may be necessary to allow one spouse to purchase real property before the divorce is finalized (called a “free trader clause”), to document the date of separation and to waive claims a spouse may have against a third party (called a “third party waiver”) for alienation of affection and/or criminal conversation.
A SAPS goes beyond a Separation Contract by outlining how marital property will be divided, if alimony will be paid and how much, how child custody and visitation will be arranged, how much child support will be paid, and other issues relating to the divorce.
Legal Separation, Sexual Relations & Reconciliation
Isolated incidents of sexual intercourse during a separation does not mean the spouses have reconciled such that a new one-year waiting period is required for a divorce. Our courts consider the “totality of the circumstances” to determine if the parties have reconciled. If a reconciliation does occur, a new separation and one year waiting period is required before the parties may obtain a divorce.
Consult with an attorney to discuss your rights and to make sure you understand the separation papers before signing them, as they become a binding contract once signed by both husband and wife.