FAQs About Legal Separation in North Carolina

When people start thinking about divorce, they may gather information from friends, relatives, co-workers, and the internet. Unfortunately, the information they receive is sometimes inaccurate, even if the person offering it has the best intentions.

One area that can be a common source of confusion is legal separation. People don’t always understand what a legal separation is, and sometimes they confuse it with the requirement for living separately and apart before filing for a divorce.

Here are some of the most common questions about legal separation, along with answers from Raleigh Separation Agreement lawyers at Vitale Family Law.

Do I Need a Legal Separation Before I Get Divorced?

Some people believe that a legal separation is a prerequisite for getting a divorce. However, there is no legal process for becoming separated in North Carolina. This is an option in some states but is not available in North Carolina.

How to File for Legal Separation in NC?

In North Carolina, couples must live “separate and apart” for one year before filing for a divorce, which is different from a legal separation.

For practical purposes, legal separations aren’t very common in modern times. However, in previous decades, couples sometimes decided to live separate lives without formally ending their marriage. In some cases, this was due to religious beliefs or social ideas that made divorce not an option. In other cases, people stayed married because one spouse needed financial support or health insurance.

In the modern era, however, it’s rare for couples to choose a legal separation rather than a divorce. It’s also possible for one spouse to provide financial support to the other without staying officially married.

Regardless, legal separation is not available in North Carolina. It’s still an option in some states, but it’s somewhat rare for a couple to pursue a legal separation even in those states.  

Do I Need a Separation Agreement to Get a Divorce?

A Separation Agreement is a document that addresses several issues, including the division of the spouses’ property, alimony, division of debt, child support, child custody, and any other items essential to the parties.

A Separation Agreement is a legally binding contract. If one party breaches the Agreement, the other person can sue to enforce the Agreement in court.

Do I Need a Lawyer to Write a Separation Agreement?

You can represent yourself in a North Carolina divorce, including drafting your Separation Agreement.

However, it’s essential to recognize that a Separation Agreement addresses all the significant aspects of your life, including your finances. For example, the Separation Agreement will determine who is responsible for real estate, including the title and mortgage, and how you and your spouse divide debt.

If you have children, the Separation Agreement can also determine how you and your spouse share or divide custody and how you handle visitation with your child.

The Separation Agreement can approach this in great detail, discussing health insurance co-pays for the child, who will cover the cost of sports and extracurriculars, and how you and your spouse will divide visitation time over holidays.

These issues can be pretty complex, so it’s generally in a person’s best interest to work with an experienced North Carolina divorce lawyer like Attorney Lori Vitale.

If you attempt to draft your Separation Agreement, going back to court later to fix any mistakes or unclear provisions can be quite costly and time-consuming. In addition, if the judge rules against you, you could also end up with a contract that puts you in a financial bind.

Some people ask if they can share a divorce lawyer with their spouse. However, the law prohibits two spouses from using the same family law lawyer in a divorce, as the lawyer must only represent the client’s interests.

A lawyer can’t represent two opposing sides in a case, as this is an inherent conflict of interest. As a result, each spouse must obtain a divorce lawyer.

Can I Still Live with My Spouse Before the Divorce?

North Carolina law requires the spouses to live separately and apart for a minimum of one year before they can file for a divorce.

In most cases, this means living in two separate places. Therefore, obtaining a formal agreement, document, or court filing is unnecessary to start living apart.

Sometimes, couples try to live apart while remaining in the same residence. They might do this because they can’t afford to purchase or rent an additional home.

If you attempt to do this, there is a risk that the court could refuse to grant the divorce because you and your spouse failed to meet the requirement of living separately and apart. Therefore, it’s in your best interest to consult the counsel of an experienced Raleigh divorce lawyer at Vitale Family Law in North Carolina. Their divorce attorneys will be able to determine what’s best for each unique situation and continue with you every step of the process.