MAKING SENSE OF THE SEPARATION & DIVORCE PROCESSES

Updated: Apr 5



SEPARATION PROCESS

How can I get legally separated in North Carolina?

A separation agreement or other written document is not needed to be considered legally separated in North Carolina. You and your (husband or wife) need to live in different homes to be believed to be separated. Also, one of you must state your plan for the separation be permanent. In general, you are not legally separated if your relationship has ended but you still live in the same home, or if you live in separate homes without the intent to be permanently separated (for example, for work purposes).


What is a separation agreement?

A separation agreement is a private contract between spouses who are separated or plan to separate very soon. A separation agreement includes agreed-upon terms dealing with various issues related to the separation, such as which spouse is responsible for certain bills, whether one person will continue to live in the marital home, or where the children will live. A typical separation agreement includes the details of separation, property division, spousal support, and if there are children, child custody and support.


Do I need a separation agreement?

A separation agreement is not required to be legally separated from your spouse. However, a separation agreement can resolve many of the legal issues involved in the end of a marriage. For example, you can decide how to divide your property and whether one of you will pay alimony to the other. In some situations, spouses may request that the separation agreement become part of their final divorce order.

Spouses who are able to resolve the issues related to their separation through a separation agreement can make those decisions themselves and avoid the need to go to court.


How do I get a separation agreement?

Separation agreements are generally prepared and negotiated by attorneys, who can tailor the agreement to the needs of your family. Contact Lundell Law Firm for more information about finding an attorney to assist you.


What are the requirements for a separation agreement to be valid?

Separation agreements must be in writing (not verbal), must be signed by both parties, and both signatures must be notarized.


Can a separation agreement include decisions about child custody and child support?

Yes, you can include provisions about child custody and child support in a separation agreement. However, if one of the parents later files a child custody case, a judge can order a different custody arrangement if the judge believes it is in the child’s best interest. If one of the parents later files a child support case, a judge may change child support if the amount agreed to does not meet the child’s reasonable needs or if there has been a substantial change in circumstances.


What is a Divorce from Bed and Board?

In spite of the confusing name, a Divorce from Bed and Board (a “DBB”) is not a divorce. A DBB is a court-ordered separation. DBB orders are available only under limited circumstances where the spouse requesting the order can prove serious fault, such as adultery or drug abuse. Once you have separated due to a DBB order, you can still resolve issues related to the separation with a separation agreement, as if the separation had been voluntary.


You can also file to ask the court to resolve issues such as property division and post-separation support through the DBB case. Once you are separated due to a DBB order, you will still need to wait one year and file for an absolute divorce to legally end the marriage.


What is post-separation support?

“Post-separation support” is a temporary form of spousal support paid by a supporting spouse to a dependent spouse who is in need of support, after separation but before divorce.


DIVORCE PROCESS

What are the requirements for a divorce in North Carolina?

You are eligible to file for divorce, also called an “absolute divorce,” only after being separated for at least a year and a day. You must have been living in different homes and at least one of you intended that the separation be permanent during that time.

To file for a divorce in North Carolina, either you or your spouse must currently live in North Carolina and must have lived in the state for at least six months before the divorce case is filed.


Does my spouse have to agree to the divorce?

No. As long as you are eligible for a divorce, your spouse does not have to agree to the divorce. If you file for divorce, your spouse does not have to complete or sign any paperwork, file anything with the court, or go to court for the divorce hearing. However, your spouse must receive proper legal notice of the divorce case that you file.


Can I get divorced after less than a year if I prove fault?

No. Unlike some other states, North Carolina only allows for no-fault divorce, which requires at least one year of separation.


What is a “simple divorce”?

A “simple divorce” is an informal term for an absolute divorce in cases where the person filing only wants to be divorced, and they are not requesting anything else, such as property division or spousal support.


What happens if I don’t file for property division or spousal support?

If no one files for property division (by filing a claim for “equitable distribution”) before the absolute divorce is finalized, both parties forever lose the right to ask a court for a property division. If this occurs, you retain solely the assets that are either titled in your name or in your possession. In the event you own any property in each names, this property will stay in each names even though you have divorced. The identical rule applies to debts.


If no one files for spousal support before the absolute divorce is final, both parties forever lose the right to ask a court for alimony. As a result of a divorce permanently cuts off the right to equitable distribution and alimony, it is important to contact an attorney to help you in preserving your rights.


What happens if I don’t file for child custody or child support before divorce?

All child custody and child support claims are not affected by divorce. Parents, regardless of marital status, can file at any time for custody of children under the age of 18. Follow these links for more information on child custody and child support.


What if my spouse doesn’t live in North Carolina?

You can get a “simple” absolute divorce in North Carolina no matter where your spouse lives, as long as you live in North Carolina at the time you file for divorce and have lived in North Carolina for the six months immediately before filing.


Your (husband or wife) must be served with the divorce paperwork no matter where he or she lives, though rules about how to serve your (husband or wife) depend on the state or county where they live.


In general, if you both lived in North Carolina during the marriage and your spouse has moved away, you can still pursue other claims against your spouse in North Carolina, including property division and spousal support.


What happens in court at a divorce hearing?

You must schedule a hearing for your absolute divorce in order to go before a judge and to receive the divorce. Simple divorce hearings are usually very quick. On the day of the hearing, you will testify under oath about the facts to show you are eligible force divorce. In most circumstances, you will leave court with a copy of your divorce judgment.


What do I need to do to prove that I have been separated for at least a year?

Your truthful testimony to the court, under oath, can prove your separation. You can also present other witnesses or documents. A separation agreement between you and your spouse can be helpful to show the court.


Legal Separation or Divorce? What's Next?

Divorce is never easy. Contact Lundell Law Firm to guide you through this highly emotional situation. We can make the process as simple, inexpensive, and conflict-free as possible. Our goal is to take the guesswork from you and give you peace of mind so you can start a new chapter of your life.

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