Separation in
North Carolina

What Constitutes a Separation in North Carolina

In North Carolina, you and your spouse are considered separated on the date that you start living apart from one another in separate residences with the intent of living apart permanently. Sleeping in different rooms of the same home does not constitute being separated. Living under the same roof but without having any shared space may not be enough in the eyes of the court, so it is best to live in separate houses in separate locations. Couples in North Carolina must be separated for at least one year before being granted an absolute divorce.

Separation Agreement

Though not required by law in North Carolina, if you and your spouse decide to separate, it is recommended that you hire an attorney to draft a separation agreement to avoid litigation. A separation agreement is a written contract between you and your spouse that resolves issues regarding children, property, and finances. The agreement makes clear each person’s responsibilities and rights. Spoken agreements hold no value and are unenforceable in court. Each party can retain his/her own attorney, though this is unnecessary.

Once the separation agreement is complete and signed by you and your spouse in front of a notary, it becomes a binding contract. You should only sign the agreement if you understand and agree to everything that it addresses.

There is no limit to what a separation agreement can encompass. It can be as simple or as complex as your situation needs. Following are examples of issues that can be addressed in the agreement; these items are not intended to be exhaustive, as you can include almost anything you and your spouse deem necessary:

• Child custody, child support (amount, time period, and terms of payment), and visitation schedule, if relevant
• Spousal support or alimony (if any, amount, time period, and terms of payment) or a waiver of spousal support and alimony
• The division of property (vehicles, land, buildings, jewelry, insurance, stocks, personal belongings)
• The division of debt
• Who will remain in the marital home, as well as who will pay to upkeep the home
• Taxes and who can claim the child(ren)
• Who will get to keep pets
• Who will pay for the child(ren)’s college education

Advantages of having a separation agreement in place include:

• If you and your spouse can work together and negotiate terms that are satisfactory to both of you without the need to go to court, you save yourselves the costly fees associated with litigation, including the additional attorney fees and time away from work.
• When you work together to resolve issues, you both are in control of the outcome. If you go to court, you lose control of the situation because a judge will be the one who decides the outcome.
• Avoiding litigation also removes the additional stress involved with a trial for the couple and for any children, who will benefit from the parents putting aside their own emotional differences and working together.

Getting separated from your spouse can be difficult enough without the additional burden of the unknown. When possible, having a separation agreement can make the situation clearer for everyone involved and avoid hostility.

If you have questions or need help with drafting a separation agreement, Wilson, Reives & Doran is here to help.