- Family Law -
One-Year SeparatioN
Before you can obtain a divorce in North Carolina, you must be legally separated for one year. It is not necessary to have a written Separation Agreement to be legally separated. It is often better to have one but it is not legally required.
The one-year separation period begins when the husband and wife begin living apart and at least one of the parties intends for them to remain separated. The parties must be physically separated (i.e., living in separate residences) to be considered legally separated, but living apart is not the sole factor in determining whether a husband and wife are separated. A couple who resumes the marital relationship, or who continues to hold themselves out to the public as husband and wife, may negate the intent to remain separated.
Because the one-year separation must be continuous, such an interruption would require the period to start all over again. However, pursuant to North Carolina law, “isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.”
Post-Separation Support
Post-separation support is meant to enable a dependent spouse to meet his or her reasonable needs. An action for post-separation support must be filed, and a judge must make findings before awarding the support. The dependent spouse must allege that he or she does not have the financial resources to meet his or her reasonable needs and that the supporting spouse has the ability to pay.
Post-separation support will last until the earlier of: the date specified in the order; an order awarding or denying alimony; dismissal of an alimony claim; entry of divorce if no alimony claim; or termination for remarriage, cohabitation, or death.
Separation Agreements
Q: What is a Separation Agreement?
A: A Separation Agreement is a written agreement between spouses that will be binding on both parties. The agreement most often settles one or more of the issues regarding the dissolution of the marriage. Typical issues include, child custody and support, alimony and the division of the marital property and debts.
Q: Can I prepare a separation agreement myself?
A: It is possible for the parties to draft their own binding separation agreement as long as it is in writing, signed and notarized by the parties, and is not otherwise in violation of any laws, it will be binding. However, it is best to seek counsel to draft the agreement to make sure that it is valid and binding. In addition, counsel can advise you about your rights and responsibilities so that you can make an informed decision about any settlement.
Q: Can I settle some issues but not others in a Separation Agreement?
A: Yes. Although ideally you would want to resolve all issues in the Separation Agreement if possible, you can reach an agreement on some issues and proceed to trial on others. For example, it may be easy to reach an agreement on the division of assets and debts while you may need a judge to determine custody and visitation.
Q: Is it worth spending the money on a Separation Agreement?
A: If you think you and your spouse can agree on the issues involved, then a Separation Agreement will be much less expensive and more expedient than court proceedings. A Separation Agreement also allows you and your spouse to make the decisions affecting the dissolution of your marriage rather than a third party.
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