Legal Separation in Durham: Is It Required Before Divorce?
In North Carolina, divorce is no quick affair. According to state law, a husband and wife have to live apart for one full year before they are able to file for divorce. This is in contrast to numerous other states that have little to no waiting or separation period to be fulfilled before filing for divorce. For example, neighbors Virginia and South Carolina both have a similar requirement, but only for one year, while states like nearby Georgia and Tennessee have absolutely no separation period to observe before filing for divorce. To talk to a skilled North Carolina divorce lawyer about your legal options and the best way to prepare for an impending divorce.
Separation Requirement for Divorce
North Carolina uses a one-year separation period partly to give couples time to think things over. When people have serious problems in their marriage, their first reaction might be to split up or get divorced. But with time and space, some couples work through their issues and choose to stay together. Living apart for a year gives them a chance to decide whether they truly want a divorce or want to try to repair the relationship.
For a lot of married couples, the one-year separation window does nothing to prevent the divorce; it just makes it take longer to get there. Once one partner has decided that the marriage is no longer worth maintaining, they must still have to wait a full year from the day one of them moves out before the divorce can become official.
Living Separately Means Under Different Roofs
Generally speaking, living “separate and apart” means the husband and wife reside in different homes. If both are still cohabiting under one roof, the court might not feel they are truly separated. For example, a judge might decide that the separation does not count if one spouse:
- Sleeps in a different bedroom but still lives in the same house
- Sleeps on the couch instead of moving out
- Stays somewhere else most nights, but still comes home sometimes
If both spouses agree that they’ve been living in separate homes for more than a year, the court may not require proof. But if one spouse disagrees and says the separation didn’t really happen, the other spouse may need to present evidence that they lived elsewhere. Because of this, the spouse who moved out should save proof of living separately, such as:
- Utility bills
- Rental agreement
- Voter registration
- Insurance or bank statements
What Happens If You Get Back Together
North Carolina law says that “resuming marital relations” means the couple chooses to renew their relationship as husband and wife, based on everything about how they are acting. To decide if a couple has truly gotten back together, the court may look at things like:
- Moving back into the same home
- Living together again on a daily basis
- Telling family and friends that the problems are fixed
- Acting like a married couple in public
- Regular sexual relationship
- How long the reconciliation lasts
It is, however, worth mentioning that the law says that a few isolated sexual encounters do not restart the one-year separation period. It’s common for some couples to have a couple of intimate moments while separated, but unless they truly get back together, these brief encounters do not “reset” the one-year clock.
Legal Separation vs Physical Separation
A legal separation is different from the one-year physical separation required for divorce. In North Carolina, every couple must live in separate homes for a year before they can get a divorce. A legal separation, called “divorce from bed and board,” is something else entirely. It is based on one spouse’s wrongdoing. Under G.S. § 50-7, the court can grant a divorce from bed and board if either spouse:
- Abandons the family
- Kicks the other spouse out
- Treats the other spouse cruelly or dangerously
- Acts in a way that makes life unbearable
- Abuses alcohol or drugs to an extreme level
- Commits adultery
Even if the court grants a divorce from bed and board, the spouses can still ask the court for things like alimony, child support, child custody, or a fair split of their property. But if either person ever wants to marry someone else, they must get an absolute divorce first.
Discuss Your Case With a North Carolina Divorce Lawyer
Living in separate homes for a year gives you time to get ready for a divorce. During this time, you can work out issues like child custody, how to divide property, and whether alimony will be paid. It also gives you and your divorce lawyer time to prepare everything so the process is as smooth as possible.
If you have questions about divorce in North Carolina, contact the North Carolina divorce lawyers at the Law Office of Stephen E. Robertson, PLLC. You can call (336) 370-6760 or reach out through the online contact form to schedule a consultation.