Divorce and Separation Agreements
In North Carolina, you can obtain an absolute divorce upon the filing of a lawsuit alleging that you are a North Carolina resident (you have lived in this state for at least six consecutive months prior to filing) and that you and your spouse have been separated continuously for one year. Like most U.S. States, North Carolina is a “no fault” divorce state. This means that, in order to obtain an absolute divorce, neither spouse has to allege or prove any type of “marital fault” (for example, adultery, domestic violence or other cruel and abusive behavior, economic misconduct/marital fraud, habitual drunkenness or addiction) has occurred. It is not even necessary that you and your spouse have agreed to separate. So long as you have made the decision that you no longer wish to live together with him or her as a spouse, you inform them of your decision to separate, and you in fact take steps to live separately and apart, you have satisfied the requirements of North Carolina law.
However, it is important to remember that there are many marital issues that are not solved by merely seeking an absolute divorce. In fact, certain claims, such as those for alimony or dividing up the money, house, business and other stuff from the marriage (the "marital estate"), must be handled prior to getting an absolute divorce. Once the Court grants your divorce, you have waived your rights to seek a judicial determination of important marital rights. If you do have these kinds of issues, you should consult an attorney.
You do not need a separation agreement or other piece of paper in order to consider your self “legally” separated. Your date of separation may be considered the date upon which you have informed your spouse of your desire to end the marital relationship and have acted on that intention—that you have taken steps to live “separately and apart.” Usually this means that at least one spouse must depart the marital residence. In North Carolina there really is no such thing as “legal” separation.
Many separated couples who are able to amicably resolve their issues may consider a separation agreement. Separation and Property Settlement Agreements are a unique form of marital contract through which you and your spouse may negotiate issues of property division, support and custody, preventing you from having to ever go to court. Once signed by both parties, these Agreements remain in full force and effect throughout your separation and are usually incorporated into a late divorce judgment. Separation Agreements are enforceable against a non-performing spouse both during your period of separation and following your divorce. Once incorporated into your divorce judgment, provisions of a Separation Agreement related to support, custody and visitation remain modifiable according to the same rules and requirements which govern court orders.
Separation Agreements are an attractive option for many people who wish to amicably resolve issues which arise as a result of their marital separation. Separation and Property Settlement Agreements are often much less costly in terms of both your financial and emotional investment, and they provide spouses with a great deal of control over the outcome of their particular case. Separation Agreements can be custom-tailored to your unique situation, taking into account each family’s personal needs and priorities. When compared with lengthy litigation in which a judge decides the outcome of your case, such control is extremely attractive. For these reasons and many others, executing a Separation and Property Settlement Agreement may save you a great deal of time, money and emotional turmoil as compared to traditional matrimonial litigation. Again, it is worth a consultation with an attorney to make sure that what you agree to is what the written agreement says.
(Thanks to Jennifer Bennett for her guest post on Divorce and Separation Agreements. I'll have her write more general information on other family law issues in the future.)
-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation. Please contact him at (910) 772-1678