10 Steps of Divorce: Part 2 Am I Separated?

Posted by Jonathan Jerkins | Jul 14, 2020 | 0 Comments

10 Steps of Divorce

Jerkins Family Law 10 steps to divorce Separation
10 Steps To Divorce: Separation

Part 2 Am I Separated?

The first step to the divorce process is to separate from your spouse. North Carolina considers a separation as both parties living in separate residences for a year with at least one of the parties intending the separation to be permanent. In this article, we will answer some of the most common questions about separation to help you understand how to abide by the requirements set forth by the state so that you are ready to move forward with the divorce proceedings when the time is right.

What's the difference between a separation and a legal separation?

The short answer is there really is no difference in terms of what categorizes a separation. While a legal separation process is required in some states, North Carolina does not require a legal separation process. Most people associate being legally separated with a legal separation. A legal separation is a legal process that you are required to go through with a court to be separated in the court's eyes, whereas being legally separated means to be separated in the eyes of the court. You can imagine how the two are easily confused with the other and how people often find misleading information.

Do I need a Separation Agreement?

While a separation agreement is not required, there is some value in creating a separation agreement. A separation agreement is usually created once it has been established that the goal of the separation is to get divorced. A separation agreement will help establish a legally binding agreement on issues like: Support Orders, Separation of Assets, Custody, and any other items specific to your case. While you are able to create your own separation agreement it is advised that you seek legal representation because oftentimes the provisions made in a separation agreement will be used in your final Divorce Decree. If there are children involved, you need to consult an attorney before moving out.

What living situations are accepted?

The State of North Carolina requirement for separation states that both parties must live apart in separate residences with at least one of the parties intending for the separation to be permanent. Any other living situation should be discussed with an attorney so that the court does not deny your ability to get divorced.

What happens If …?

  • If we don't want to get a divorce at first because we want to work things out but separation is the best course of action but while trying to work things one of us decides that we want to get divorced?

This is a specific situation that answers a pretty important question. Even though you might be physically separated for a period of time, the 365 day separation requirement starts when one or both parties has the intent to remain separated permanently. 

  • If we are physically separated but to the eyes of friends and family we are putting up the facade of being together?

Much like the last question, if you are separated but still living the life of a committed relationship, the other party could contest a divorce stating these actions do not prove that either party intended for the separation to be permanent.

  • If I am physically Intimate with my ex while we are separated?

While it is important to make smart decisions that work for you during a separation, the court is not in the position to police your life while you are separated and the choices you decide to make. There is no longer a legal statute that requires a reset on the timeline for separation for isolated intimate acts. 

10 things not to do while separated:

  1. If you have children, do not deny the other party parenting time
  2. Do not jump into a new relationship
  3. Do not turn to social media to talk about your situation, your spouse, or any court proceedings
  4. Do not bad mouth your ex
  5. Do not use your kids as a weapon against your ex
  6. Do not intentionally violate an agreement
  7. Do not take advice from the wrong people or sources
  8. Do not make any significant financial or life changes before an agreement is in place
  9. Do not ignore your own well being
  10. Do not focus on divorce like it is the end of your life

I understand that these are only a few answers and that every situation is different so an answer for one person might not apply at all to someone else. If you have any more questions regarding the divorce process, your order, or if you feel your order is being violated make sure to contact your lawyer. If you do not have any current representation and have additional questions please feel free to reach out to me and I will do my best to find you the answer.

Jay Jerkins
Jerkins Law, PLLC
(919) 719-2785

About the Author

Jonathan Jerkins

Jonathan "Jay" Jerkins, a native of Raleigh, North Carolina, intentionally focuses his practice on all aspects of North Carolina family law litigation and negotiations. Jay was admitted to the practice of law in North Carolina in 2014.


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