What is a Legal Separation in North Carolina?

In our state, the term “legally separated” is a term of art used by attorneys, and misused by many non-attorneys. This legal separation is a decree made by a judge after a special trial based on marital fault. The court enters an official decree, stating that you or your spouse was wronged and declaring you separated. Why do all of this to separate? Because people are correctly reluctant to move out of the family home for fear of committing abandonment. Marital misconduct (marital fault) can easily cause a great deal of harm to a spouse’s case. This process of a judge declaring a person to be legally separated is a rare event indeed, but it is still alive and well in our state.  In legal terms, this process of declaring people to be separated, but still married to each other, is called a divorce from bed and board.

What people usually mean is a “separation” that will allow them to get divorced after a year of separation, Two main things are required to be separated for purposes of a divorce. First, the husband and wife must not live together in the same residence for at least one year. Living in the same residence in different parts of the house is not adequate. Second, either the husband or the wife must intend for the separation to be permanent. Note there is no requirement that both intend the separation to be permanent; only one person must. If they are living separately but neither intends to be separated, such as those separated by military service or extensive travel, they are not separated for the purpose of getting divorced.  There is no legal requirement for any documents to be written or signed for people to be separated.  The fact that people live apart, and one of them intends the separation to be permanent, is sufficient to be separated for the purpose of filing for a divorce after one year has passed.

Clients sometimes ask me if they can agree to say they have been separated for a whole year, when they have only been separated a few months. The answer is always NO. Alleging untruthful things in a divorce complaint (the document that generates the lawsuit) constitutes the crime of perjury, whether one person commits perjury or both do, regardless of whether you agree to do so. The process of a judge entering a divorce based on one year of separation is called an absolute divorce.  Once this type of divorce is entered, each person is legally free to remarry if he or she chooses to do so.



What’s Involved With a Divorce?

In North Carolina, marital fault is not required to obtain a divorce. In most circumstances, the parties must be separated for at least one year before either party may file a lawsuit for a divorce. A divorce severs the legal relationship between two married people, and impacts many legal rights and responsibilities. There is no common law marriage in our state, although North Carolina will recognize one if it was validly performed in a state that does permit common law marriage. A divorce is a ruling on the legal relationship between you and your spouse. A divorce makes a critical difference in many important situations, such as health insurance, the way you file tax returns, and retirement and social security benefits, to name a few.

A divorce also controls when you have the right to file claims for alimony and marital property division, your rights to jointly owned property, including survivor rights, and others. If a married person changed his or her name, the divorce decree can restore the use of the original birth name or (under some circumstances) a former last name to that person. Alternatively, a person may file court proceedings requesting the use of the original or former name after the divorce should he or she later decide to do so.  When someone changes names, he or she should report the change to the proper government entities, such as the Social Security Administration and the NC Division of Motor Vehicles. If a lawsuit for a divorce has been filed, there are strict deadlines for filing responses to the lawsuit.  Certain marital rights are permanently lost if claims are not filed by the time a judge enters a divorce decree. ALWAYS consult with an attorney as soon as possible to discuss your rights in the event a divorce lawsuit has been filed.