What is Legal Separation in North Carolina?
In North Carolina, legal separation can be defined as the period of time preceding dismissal of your divorce action or entry of a divorce decree. The statutory authority is in N.C.G.S. 50-8(a): "Two spouses who are both residents of North Carolina shall be deemed to be living separate and apart from each other upon proof that the spouses are living in separate residences and at least one spouse: (1) has the intent to terminate the marital relation; and (2) has physically separated from the other spouse." The term "legal separation" is largely a colloquialism in this state, as there is no real legal effect of the term other than a date certain from which to analyze claims for post-separation support (alimony), or equitable distribution. It is a commonly held belief that a person who is legally separated has the option to remarry, but this is a myth . Only after a final divorce decree has been entered by the court do either of the parties have the ability to re-marry.
The textual definition aside, separation does not mean a spouse can live their life as if they were single. That’s because the Civil Court in North Carolina considers two people still married until a divorce is finalized. This means one spouse is legally responsible for the other’s debts, unless it has been expressly stated otherwise in a legal separation agreement. In addition, they cannot marry another person during the period of separation. People sometimes confuse the process of legal separation with divorce. Keep in mind that there is no such thing as a, "legal divorce," only legal separation can occur before your actual divorce.
Steps of the Legal Separation Process
In North Carolina, the process of obtaining a legal separation is straightforward, but it does require compliance with a specific procedure set forth by statute and the Courts. Simply living separate and apart from a spouse does not mean a legal separation has been obtained – a legal separation requires obtaining a divorce from bed and board (which is unlike a divorce obtained pursuant to NCGS 50-5, which also requires that there be a one year or longer separation).
A divorce from bed and board is obtained by filing, or having an attorney file, a complaint for divorce from bed and board with the Court. The complaint must be served upon your spouse and then an Order must be entered in connection with the action, including some form of equitable distribution of property and payment of any monsters (child support or alimony).
Once a divorce from bed and board is obtained, then a party must wait one year and one day and file another complaint for divorce. The divorce is then granted at the uncontested calendar.
It may seem to be redundant to have to file this "in between" divorce from bed and board prior to the actual divorce, however in order to be legally separated in North Carolina, you must be divorced from bed and board. Only after you have been divorced from bed and board are you deemed to be legally separated in the state of North Carolina. If you have children and a separation agreement, you will need to have this presented to the Court so that the provisions regarding visitation, child support and health insurance can be made part of the Court’s order.
Differences Between Legal Separation and Divorce
Legal separation and divorce are both legal processes that formally end a marriage, but they come with significant differences in terms of marital status, legal rights, and responsibilities. The most obvious difference between the two is the marital status of the parties. A legal separation may be an interim step in the divorce process, or may be a long-term status for some couples. In North Carolina, spouses can live apart indefinitely without obtaining a divorce.
Although legal separation does not end a marriage, it triggers the start of important legal matters. For example, once separated, spouses can no longer make joint decisions regarding property, debts, assets, income, and expenses. They must each decide how to manage their own property and finances during the separation period. Spouses must also file tax returns separately as single individuals, rather than a married couple.
One important distinction between legal separation and divorce is the impact on financial matters. Spouses are generally responsible for each other’s debts and obligations that were incurred before the date of separation, but not after. This means that they can enter into new contracts with individuals and businesses without needing the consent of the other spouse. However, obligations may arise in other contexts.
For example, if one spouse becomes legally separated owing $10,000 to a lender, and the other spouse co-signs the loan after the date of separation, the couple’s ability to divide property and debt becomes much more complicated if they later divorce. Not only does the spouse that did not benefit from the loan have to pay half of the debt, but they will also be responsible for their own half of the obligation on top of that. Practical solution to this problem is, as always, best.
Advantages of Legal Separation
Beyond the clear difference in status, today’s separation of the Law Blog from the rest of the Kimel Herdt Blog doesn’t materially affect the blog. I plan to have a section on this post that also contains a feed to the Law Blog so that the posts can be read here on the separation blog. So anyone who wants to keep reading about the secret underground world of solo practice can.
A legal separation has several advantages over a divorce, though caution is required before assuming that one is better than the other.
Financial advantages to legal separation can be found in securing certain rights before a separation is finalized. (1) If one spouse is unable to maintain health insurance for him or herself, eligibility to maintain coverage (for an 11 month period after the date of separation) under the system set up by the Consolidated Omnibus Budget Reconciliation Act ("COBRA") after establishing an actual separation date could be beneficial. (2) The right to receive alimony or post-separation support if an couple is separated but still married is a significant advantage over a simple separation. (3) The ability to divide property with a separation agreement or a court order without having to wait a year or beyond.
Emotional and practical considerations can also favor a separation. For example, if you or your spouse are not ready to finally sever the marital bond for either emotional, religious or other reasons, then perhaps a legally binding separation is helpful. If there are children involved, the separation gives a period of time to establish a custody arrangement and time to help the children adapt to the impending divorce without adding the stress of the separation itself being within the household. In fact, I have seen situations in which a couple who is living together while divorcing can hurt their children’s psyche far more than the divorce ever could, because even if you are still living in the early stages of a failed marriage, it can be so very hard to put on a happy face and to eliminate all the tension. Because no matter how civilized a couple can be with a divorce, a divorce is still a traumatic event if you have young children.
There are also practical possibilities that can make a separation more beneficial. Perhaps an inheritance is expected by one spouse, and a separation agreement can address how and when those assets will be equitably divided by future divorce.
In large part, the choice between separation and divorce turns on the specific goals of a couple and the potential for a separation to lead into a happy life together or a divorce to lead to happiness. Although a divorce will end a marriage, if you have children, separation affects the children far more than a divorce does. In fact, I see clients in my office where a couple has been separated for years (often even decades), and they want to change their status to divorced but continue living together, because the divorce simply frees them up to live separately without ending the relationship.
Custody and Support During Legal Separation
In North Carolina, a legal separation is a predicate to starting the process toward a divorce. Without first separating from your spouse, you cannot commence a lawsuit for equitable distribution, child custody, or post separation support. While physical separation alone does not import any legal status, it opens the door to pursuing the legal status known as "legally separated" rather than "docu-separated." Being legally separated generally allows separation of potential marital assets and income of the parties after the date of separation, as opposed to the date of filing a lawsuit.
Custody and child support are probably the largest factors implicated in a separation. Custody is the legal care and control over a child, and the rights and obligations as to a child’s health care, education, and welfare. Parties may enter into a written agreement among themselves and then seek Court approval. That agreement will then have the same force and effect as an order signed by a judge. If the parties cannot agree, then the present system in North Carolina is that a judge will make the determination.
There are a number of presumptions when dealing with custody disputes – some controlling. First and foremost , the biological mother of a child born during wedlock is presumed to be the legal parent of the child. This presumption can be overcome on the issue of child support, however, if a father can challenge paternity, even if he did not do so in a timely manner.
The best interest of the child is always the paramount consideration in any child custody dispute. The Judge will weigh a number of factors under a best interests of the child standard. Among those factors, the following are controlling: In a typical case, a temporary (interim) custody and visitation order is not required. The Court understands that parties engaged in separation or divorce are emotional and may be less than amenable to a request for interim custody and alimony. Most of the time, the parties can work out an agreement on their own, or agree to an interim plan to give a few weeks time for the emotional state to subside before going to Court. If there are serious safety issues, the Court may require a custody order at the outset so as to ensure the child’s safety.
Dividing Property and Debt
Under North Carolina law, there are no legal requirements for how property is divided during a period of legal separation. In fact, you can live separate and apart for several years and move forward with your life without ever dividing property or defining how assets will be divided in the event of a divorce.
However, in general, all of your "marital property" will be divided upon divorce. You can read my previous blog posts about what qualifies as marital property to learn more about how assets are divided.
If you and your spouse are able to effectively communicate, establish a working, productive relationship, and can agree on how property and debt will be divided, you can execute a Separation Agreement prior to divorce in which you outline how property will be divided.
Sometimes parties move forward with a Separation Agreement but discover that their best interests are not being served, or they do not fully meet the legal requirements for entering into a valid contract. In this case, Property and Debt Division is possible after separation, but those discussions must involve an attorney.
You can read my previous blog post about "Equitable Distribution" to learn more about how Equitable Distribution works in a North Carolina divorce.
When the parties cannot agree on how to divide property and debts or futures needs or if their assets require a judicial determination about how they should be divided, then an action for Equitable Distribution within the family law lawsuit might be required, to include the appointment of a business valuator to ascertain the value of business and determine the distribution of that business.
Enforcement of the Separation Agreement or Equitable Distribution is possible once the parties have finalized their Divorce. In many cases, people simply follow the terms of the Agreement or Court Order, but if that is not the case, an enforcement action can be requested of the Court either for the Separation Agreement or Equitable Distribution Judgment and Order. A person can also obtain a judgment for arrears even after the divorce is final, which may require a judgment creditor/debtor garnishment enforcement action.
Legal Representation and Advice
Your best course of action is to seek competent legal advice before making any decisions on separation. Most attorneys charge for an initial consult, whether you do it in person or by phone, and some charge for the first hour even if you do not hire them. The cost is worth the potential benefits. An experienced attorney may help save you money and grief by ensuring that you have all important facts before making decisions that cannot be easily undone. Likewise, if your spouse takes action without you, you will be better able to respond to any petitions for support, custody, or equitable distribution of property that are filed before you can retain an attorney.
There are many considerations when deciding who to hire as an attorney to represent you during legal separation. You will want to determine how experienced an attorney is in working with these matters and how comfortable you feel discussing your personal situation with your attorney. It is always best to have an attorney who concentrates his or her practice primarily in family law cases so that they are aware of the most current changes in the law. North Carolina has special laws regarding separation and divorce that differ from some other states. You will want to determine how the attorney charges for his or her time, whether this is by the hour or possibly a flat fee. If this is by the hour, then you need to ask about what the attorney charges for his or her time along with who else works for him or her and what their rates are. You need to determine if you will be responsible for the attorney’s time spent away from the office, such as travel time, time spent at mediation, court, etc. You want to clarify if there are any extra charges for these items so that you can make an informed choice once you have hired that attorney. You will also likely want to determine what methods the attorney’s office uses to bill clients and what information is provided to and discussed with the client. While this is not an exhaustive list of things to consider when searching for an attorney, it should help guide you in the process.
How to Change or Convert a Legal Separation
If the parties cannot agree to modify their separation agreement, and one party wishes to seek enforcement of the agreement in Court, either party is free to go to Court to enforce its provisions. However, if the terms of the Parties’ separation agreement are being followed as required, but there has been a change in one party’s circumstances that warrants modifying the agreement, then the party wishing to modify their agreement must convince the Court why it should be modified. In the instance where either party obtains relief from the other which is granted by a Court Order, the Order is subject to the full and complete discretion of the Court. Therefore, the Order may not be modified without the express consent of the Court and is not made subject to the contract of the separation agreement between the Parties. However, if the Parties mutually agree to modify their separation agreement, then they are free to do so even if it was previously entered into freely and voluntarily.
After more than one year from the date the Parties separated, they each are legally entitled to a divorce in North Carolina upon filing an application for an absolute divorce. An absolute divorce does not affect any child support, equitable distribution, alimony, post separation support, or property division rights . However, if the Parties have a separation agreement and all of their obligations of the Parties are satisfied and set forth in the separation agreement, then after one year the Parties have been automatically divorced. The separation agreement is legally binding and enforceable between the parties so long as it follows the required form of statutory separation agreements as prescribed by statute (in other words, it must be executed according to the requirements of NC law). Therefore, it is in the best interest of the Parties to stipulate in the agreement that it is not subject to modification except through a bilateral agreement of the Parties. However, the Parties cannot eliminate the requirement of a one year separation period prior to absolute divorce. Therefore, even if the Parties’ separation agreement states the parties will not get divorced until all obligations set forth within the agreement are satisfied, upon the petition and application of either party or on its own motion, the action for divorce shall be tried and determined as soon as practically possible, but not more than thirty (30) days after the filing of the affidavit and the completion of the waiting period, if any.