Do You Need Proof of Separation in North Carolina before You File for Divorce?

Posted by Jonathan Jerkins | Jul 12, 2019 | 0 Comments

Most states do not require any type of waiting period or separation prior to filing or getting a divorce. North Carolina, however, is not in the majority. Here, the law requires you and your spouse to be separated for one year before you can get a divorce. To fulfill this obligation, you must live separately and apart. N.C. General Statutes § 50-6 states:

Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.

This requirement leads many to wonder if they must file some kind of form for a separation which would in effect act as proof of separation. But there are no forms to be filed. There is no separation agreement to be drafted (but you can have a legal separation agreement drawn up if desired, and in cases where children are involved or alimony is requested, it may be necessary). So, in North Carolina, what do you need to later prove you have been separated and living apart for one year? Do you even need proof of separation?

Do you need proof of separation in North Carolina before filing for divorce?

No, you do not need proof of separation. Your word is typically good enough. When you file for divorce, you will state in the papers that you meet the separation requirements. Those requirements are minimal and basically mean that for a minimum of one year, you lived at separate residences. 

But there is a catch: your spouse could contest the divorce on the grounds of separation. That said, it's not you who would have to prove it – the spouse contesting would have to prove it. Sometimes, a spouse may try to claim that you engaged in sexual intercourse at some point during the separation and that the latter is proof of non-separation or that it somehow stopped the clock on the one-year requirement. North Carolina law, however, is of the opposite opinion.

Under the same statute mentioned above: 

Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.

Getting "back together" occasionally does not suffice as proof that you were not living separate and apart. If your spouse is persistent and tries to prove it, you can – if your attorney believes it is useful – counter the claim with evidence. 

What proof would you provide to prove separation before filing for divorce in Raleigh, NC?

Absent court forms or a legal separation agreement, there are ways you can prove you were in fact separated and living apart for one year. The following documents can help support the claim:

  • a rental agreement or mortgage in your name only and not your spouse's name – this indicates where you live and your spouse may have to somehow prove he or she lived at the residence during the last year;
  • utility bills, like electricity, gas, water, and sewer – this type of proof shows that someone indeed was using/living at the address;
  • bank statements showing you and only you (or at least not your spouse) is named on the account – this shows financial separation as much as it indicates physical separation;
  • a driver's license indicating where you live to reinforce the claim you have lived at separate locations.

Retain a Trusted Family Law Attorney in Raleigh NC

If you are thinking of a divorce, remember that in North Carolina, you must separate and live apart for one year. If you have questions about separation, contact our office. We are here to advise and guide our clients going through difficult times.

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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