The short answer is no, you can’t choose a date of separation. In the real world, efficiency and common sense would suggest that you could. But this is not an agreement to apply for “services” from the government. It is a lawsuit, and a judge must use the law. Divorce is a legal status, similar to a legal status of biological parent in a paternity case, for example. Each state has laws dictating how long a married couple must be separated before they are eligible to divorce. Here in North Carolina, the law requires a one-year separation. This should not be confused with our residency requirement. It requires at least one spouse to live in this state for six months before he or she is allowed to file a claim for divorce, even if the parties have already been separated for a year when one spouse moves here.
All Divorces Are Lawsuits
It can be easy to forget that even uncontested divorces are filed by a plaintiff, served on a defendant, and ruled upon by a judge. In fact, most people don’t even have to be in court. Except for incurable insanity, the only ground for a divorce in North Carolina is a one-year separation. This requires that at least one spouse intends for the separation to be permanent, although there is no requirement that the lawsuit say which spouse intends to remain apart. Examples of one-year separations that don’t fit into this category are couples who are only separated by military service or incarceration. They are not separated unless one spouse intends to remain separated (i.e., that person does not want to move back home when no longer physically separated).
The divorce complaint, the document that starts the lawsuit, cannot even be signed until the day after the year has passed. When you sign the complaint, you do so under oath, under penalty of perjury, which is a crime. Worse yet, if you lie about the DOS, your fraudulently obtained divorce can be set aside (voided) because you were not separated for one full year.
Why Do We Have to Wait a Year?
The government doesn’t want you to have a fight with your husband or wife, separate for a few days or weeks, get divorced and then reconcile and remarry. Many lawyers, myself included, believe the length of separation is too long. Some states require a longer wait only if the couple has children, and let the non-parents divorce much sooner. Although many believe the waiting period is excessive, it is the law and we must all obey it. There are plenty of others who believe one year isn’t long enough. Our state laws used to require a two-year waiting period. Not too long ago, there was a proposed “Healthy Marriage Act” that would’ve restored the two-year waiting period. In fact, it would have required counseling of some sort for parents and non-parents alike.
Can We Just Stay on Opposite Ends of the House?
Although the idea of separating in the same house is a clever one, it is inadequate. A separation requires living under two different roofs. This can be difficult for couples who don’t have enough money to establish two separate homes. But if separate homes weren’t required for a separation, it would be impossible to clearly identify who is or isn’t separated. Your spouse could claim the one-year separation had already occurred, and you could have a sheriff serve you with a divorce complaint out of the blue. Brand new parents need the whole nine months to figure out what they are doing with this new legal title of parents. And, so it is with divorces. You have to figure out medical insurance, where you will be living for the immediate future, your short-term finances, sometimes your employment, and perhaps what to do about your children. On the upside, the clock no longer stops ticking if there are “isolated incidents of sexual intercourse between the parties . . .” In the past, you could be separated for a long time but any sexual intimacy restarted the clock for one-year separation.
See NC Gen. Stat. §50-6