This blog will explore the separation requirement for NC divorces. Often, we get phone calls from potential clients whose marriage is not working out, and they inquire about getting a divorce. Many people assume they can just immediately initiate proceedings. In North Carolina, you cannot just get a divorce as soon as you and your spouse feel like things are over. In North Carolina, the court will only grant an absolute divorce using one of two legal theories; 1. Incurable insanity (extremely rare), and 2. more than one year of separation.
What does more than one year of separation mean? In this blog, we will explain exactly what it means. Like all of our blogs, however, this blog is intended for informational purposes only, and is not intended as a substitute for the advice and counsel of a divorce attorney or family law attorney.
**Please note: we will not be talking about the incurable insanity method of divorce in this blog.
We are only talking about an absolute divorce
The requirement of more than one year of separation (at least one year and one day), is unique to an absolute divorce. An absolute divorce is a complete divorce which allows both parties to re-marry anyone they choose. This is different from a divorce from bed and board which is more complicated compared to a informal separation.
There is no one year of separation requirement for other family law actions, such as the following:
- Child Custody
- Child Support
- Equitable distribution
- Post-Separation Support
- Divorce from bed and board
- Separation agreements
The above-mentioned actions can be started prior to the parties being separated for a year, and for some, while the parties are still living together.
Fault does not eliminate the separation requirement
Infidelity, abuse, or overall bad behavior does not eliminate the requirement for the one year and one day of separation. Although there may be other legal remedies for those things, the court will not grant a divorce if the parties have not been separated long enough.
The separation requirement does not mean simply sleeping in separate bedrooms
By far the most common question that we get with regard to this rule is “does it count if we are just sleeping in separate bedrooms?” The answer is no. The parties have to stop living together under the same roof. They have to have separate residences with separate addresses.
Intent to end the marriage
In addition to being physically separated, for the separation requirement to be satisfied, at least one spouse must intend to end the marriage. They must have the intent to remain separate and apart. If the parties are physically apart but behaving as a couple, the separation requirement will likely not be met.
Other issues regarding separation
Sometimes one of the spouses moves out, then moves back in than moves out again. In this case what date does the court count as the date of separation? This is something that is very fact specific and would probably require consultation with a family law attorney to determine.
Family law can be very complicated – if you are in need of a family law attorney in Charlotte, NC or the surrounding areas, contact us.