North Carolina requires that spouses live apart for a year in separate residences before filing for divorce, unless you have a credible claim for the grounds of “incurable insanity.” This time is referred to as “separation,” and if you and your spouse separate, getting a separation order can make your lives easier when the time comes to officially divorce.
There are some consequences to living apart. Some of these consequences are practical and some are legal. Many of them can be addressed by a separation agreement.
Legal issued addressed by a separation agreement
- The eventual filing for divorce. Living separately for at least one year is a precondition to filing for an absolute divorce. Divorces from bed and board can be granted for other reasons such as abandonment or adultery. One spouse must also have resided in North Carolina for at least six months prior to seeking a divorce.
- Equitably dividing assets. Generally, the family court has the authority to divide marital assets. Marital assets are the homes, cars, jewelry businesses, retirement accounts, and other interests the spouses acquire during the marriage. Separate property includes property each spouse owned individually before they were married, as well as any assets acquired after the spouses separate. So, if you accumulate any assets after you or your spouse leaves the marital residence, that property may not be subject to equitable distribution.
- Post-separation support. This is a form of alimony that is payable after the spouses separate and before the spouses divorce. A spouse may not be entitled to post-separation support if the spouse engaged in sexual relations (marital misconduct) with someone other than the spouse before the separation occurred.
- This is spousal support that is paid after the divorce is finalized. The same marital misconduct condition applies for alimony. Marital misconduct by the person seeking alimony can cause the denial of an alimony claim. Likewise, if the person who is being asked to pay alimony also committed marital misconduct, then the marital misconduct alone is grounds for awarding alimony.
- Custody and child support. In North Carolina, parents can agree to child support and child custody arrangements on their own, and can begin these negotiations in their separation agreement, as opposed to waiting for the divorce agreement to be finalized.
Practical issues to consider when parents separate
- The cost of multiple homes. The main practical concern is that living separately is much more expensive than living together. Living separately means paying for two residences. It also means double utility bills, separate shopping lists, and probably means separate cars.
- Many spouses are eligible for health insurance through their spouse’s insurance policy. If spouses divorce, then each spouse normally must obtain their own health insurance policy – but Spouse A may be able to remain on Spouse B’s insurance plan if they are only separated.
- New relationships. In North Carolina, you can date other people while you are legally separated. However, doing so can lead to complications with the divorce. For example, your soon-to-be-ex-spouse may be reluctant to agree that you started your new relationship after you were separated. If you want to start dating, you should think carefully about how to proceed.
At Epperson Law Group, PLLC, our experienced Charlotte divorce lawyers prepare separation agreements that provide for your property, alimony, child custody, and child support needs, and other financial and practical matters. To discuss a separation or a divorce, call 704-321-0031 or complete our contact page. Our offices are located in Charlotte, Boone and Weddington.
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