A married couple is “legally separated” as of the date on which the parties begin living separate and apart from each other and at least one of the parties intends to end their marital relationship. The parties must live in different residences to satisfy the “living separate and apart” requirement. The parties are not separated if they are residing in separate areas of the same residence. North Carolina does not require the parties to file any legal document or take any formal step to be legally separated other than to live separate and apart with the intention to end the marriage. The date of separation, if disputed between the parties, can be proved by witness testimony and other evidence of each party’s residence.
A party may file for for absolute divorce in North Carolina if at least one party has resided in North Carolina for six consecutive months prior to the filing of the divorce action and the parties have been separated for one full year prior to filing the divorce action. North Carolina is a “no-fault” divorce state so there is no legal advantage to being the party who files the divorce action.
A resumption of the marital relationship will end the parties’ separation. Termination of the separation may have adverse or unexpected legal consequences, especially if the parties already have signed a separation agreement resolving issues arising from their marriage. If you are separated and intend to resume your marital relationship, a family law attorney can review your situation and advise you of any legal ramifications that may need to be considered. Isolated incidents of sexual relations between spouses who are separated will not void the one-year period of separation.
The parties may pursue other claims arising from their marital separation, including child custody, child support, postseparation support, alimony, and equitable distribution, in a separate lawsuit filed prior to divorce or as part of the divorce action. If claims for spousal support and property division are not settled by the parties or pending in a lawsuit prior to divorce, those claims are automatically extinguished by divorce. Divorce also terminates the right to inherit through intestacy and other estate rights arising from the death of a spouse.
Entry of a judgment of divorce has serious legal consequences. If you are served with a complaint for absolute divorce, or intend to represent yourself in the divorce process, you will benefit from having a consultation with a family law attorney to ensure that you are not waiving rights that you did not know you had or did not understand that you were waiving.
The family law attorneys at Tharrington Smith have built their reputation on providing effective and efficient legal representation in all aspects of family law. Whether you need assistance with a simple divorce or a complex equitable distribution matter, our team of dedicated legal professionals is available to serve you. Please contact our office today to see how we may be of assistance to you.