When a couple encounters trouble in their marriage, they may consider a separation or divorce. Divorce is the legal termination of marriage and has specific requirements, including the requirement to be legally separated for more than 1 year. While the couple physically separates, they remain legally married although living apart.
Some couples remain permanently separated without going through the process of a divorce. There may be a number of reasons why a couple may prefer a separation instead of a divorce. A couple may separate without a divorce for religious, cultural, or even financial reasons. Before considering a separation or divorce, it is important to understand the limits of legal separation in North Carolina.
Legal Separation vs. Divorce in North Carolina
A divorce is the legal termination of a marriage. North Carolina is a “no-fault” state for divorce. In order to get a legal divorce, a person must have been living in the state for at least 6 months, intend to remain permanently separated from their spouse, and have been legally separated for at least a year before filing for a divorce.
With a legal separation, the couple may draw up an agreement that details the rights and obligations of each person when they are separated. A separation does not change the fact that the couple is still married. The marriage remains valid until the couple gets a divorce. With a separation, the spouses cannot legally remarry another person until they get a divorce.
After a divorce, the couple has to deal with child custody, child support, spousal support, and property division. If the couple cannot come to an agreement on these issues, the court will make a decision on how to divide duties and responsibilities. With a legal separation, the couple has to make similar decisions for support, custody, and property, while still legally married.
Benefits of Legal Separation
There are a number of reasons why a couple may prefer a legal separation instead of a divorce. Some couples have religious or cultural beliefs that make a divorce out of the question. A legal separation may be the best option for those who do not want to live together but cannot get a divorce. Other couples chose a legal separation because they consider a divorce to be too expensive.
There are also financial reasons for a couple to stay legally married. Some tax benefits can provide a financial incentive to remain as a married couple for tax purposes. Insurance or health coverage is also available to many married couples that would not be available if they were divorced. Some pension plans or retirement benefits also require a minimum number of married years for a spouse to get benefits.
However, just as there are some potential benefits, there are drawbacks to choosing legal separation. For example, if one spouse accumulates debt, creditors may be able to go after jointly held property of the couple.
Temporary or Trial Separation
A legal separation may begin with temporarily moving away. Even without planning to legally separate, one spouse may temporarily move out to give the couple time to think things over. Separating on a trial basis could eventually lead to the decision to legally separate. A separation may also be necessary for the couple to get a divorce, requiring separation for at least one year.
Alternatively, a temporary separation may result in the couple getting back together, without having to deal with the legal consequences of a divorce or separation agreement.
For couples who decide to permanently separate, they may need a separation agreement to resolve questions involving child custody, spousal support, and property division. The couple may agree to how they want to resolve these disputes, but the couple may need a formal document to be able to enforce the agreement.
A Separation Agreement and Property Settlement is a contract that spells out the terms of the couple's separation. In general, a separation agreement may include:
- Child custody
- Child support
- Spousal separation support
- Property division
- Pet custody
- Which spouse gets what property
- Which property should be sold
- Insurance coverage and costs
The specific terms and conditions of the separation agreement are generally up to the couple, as long as the terms of the agreement are legally enforceable. For example, it may be unenforceable if a separation agreement attempts to limit or waive financial support for the couple's child.
A separating couple with a separation agreement may be able to keep the terms of their agreement private. A valid separation agreement only needs to be signed and notarized. It does not have to be filed with the court or have a judge rule on the agreement to be valid.
If one spouse violates the terms of the separation agreement, the other spouse can seek enforcement or other legal remedy in court. Because a settlement agreement is enforceable in court, couples should consider talking to an attorney before negotiating or signing a settlement agreement.
Legal Separation in North Carolina
There is not a specific process for legal separation in North Carolina. Without a divorce, a separated couple is still considered married in the eyes of the law. A “legal separation” in North Carolina involves an enforceable separation agreement signed by the couple. This provides the terms and responsibilities of each spouse upon separation.
In order to file for a divorce in North Carolina, the couple has to be separated for more than one year. To be considered legally separate for the purpose of getting a divorce, separation involves living separately with the intent to permanently remain living apart. This could include moving out of the marital home, moving into a new home or apartment, or moving out of state. However, sleeping on the couch or moving into the basement would generally not be considered living separately to qualify for a divorce.
Raleigh Divorce Attorney
The decision to get a divorce or legally separate can be difficult. If you are considering a legal separation in North Carolina, Jerkins Family Law is here to help. We can help you negotiate the terms of separation, including child custody and property division. Located in Raleigh, North Carolina, Jerkins Family Law is committed to helping our clients in their time of need. Contact us today and see how we can help you and your family.