In the state of North Carolina, you and your spouse must be separated for at least a year and one day before you are eligible for divorce. To be considered separated, you must be physically separated with the intent to remain separate and apart. When one spouse moves out of the marital home, the requirement of physical separation is satisfied. It is not enough that you live in the same home but sleep in different rooms.
Of course, there are special circumstances where this may be permitted, but it is best to consult with an attorney to discuss your situation. Additionally, it is only necessary for one spouse to have the intent to remain separate and apart.
The satisfaction of both requirements gives you a date of separation, often referred to as a “DOS.” The DOS is important not only as a separation starting point but also plays a huge role in determining how property will be distributed.
What if we change our minds?
It is not uncommon for parties to change their minds and consider reconciling the relationship, but reconciliation after separation has several implications.
Several factors are considered to determine whether you have voluntarily “resumed marital relations.” These factors include moving back into the same residence, letting family and friends know you are working things out, and sharing responsibility for household chores and finances.
If you do not intend to reconcile but are consistently intimate, go to public places together, or satisfy any of the other factors listed above, your case can be negatively impacted. Alimony provisions included within separation agreements may be considered null and void in the event of a reconciliation. Your date of separation may be hindered.
For example, if you separate, reconcile, and separate again, your date of separation will be deemed to be the later of the two. This can greatly affect equitable distribution because anything acquired between the two dates of separation is potentially up for grabs.
If you are considering reconciliation, you should consider discussing it with an attorney so you can be sure to know your legal rights and the effects it might have on your case.
What is a separation agreement?
Though not required, a separation agreement can be an extremely helpful way to resolve the legal issues that arise upon the end of a marriage. It is a private contract between separated spouses or parties who are planning to separate in the near future. Anything from alimony terms, details of the separation, child custody, and property division can be included in the agreement. Making and including these decisions in a separation agreement allows the ultimate control to remain with the parties rather than the court. Plus, the process is often faster, cheaper, and less stressful than litigation.
Generally, attorneys will negotiate and prepare the document, tailoring it specifically to the wants and needs of the parties. Once the written agreement is completed, it must be signed by both parties and notarized. Unlike in many other states, a judge does not have to approve the agreement at the time the divorce is finalized. Additionally, the parties can agree to incorporate it into the divorce decree. This results in the agreement becoming part of a court order, meaning it is no longer treated and enforced like a contract.
If the agreement is not incorporated, it can be enforced in the same way as any other contract. A party can sue for breach and seek monetary damages. On the other hand, a party can also seek specific performance where the court orders the other party to comply with what the agreement requires.
If you are considering separation and ultimately divorce, it may be in your best interest to contact an attorney about a separation agreement. Triangle Divorce Lawyers has experience drafting and negotiating settlement agreements and would be happy to help you navigate your way through it.