North Carolina Law Blog

Version 2. People often assume a separation agreement is required in order to be legally separated. This is not correct. The law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship. In North Carolina, a couple may be legally separated without entering into a separation agreement.

While not required, a well drafted separation agreement can provide a number of benefits.

First, a separation agreement can address all matters related to a divorce including alimony, property division, child custody, child support, and a waiver of claims against third parties. Rather than leaving the decision to a Court, a couple can negotiate almost any term which is not against public policy.

Perhaps the most difficult part of a divorce or when a couple separates is deciding how the children will be cared for in the future. Child custody in North Carolina includes decision making authority regarding a child’s welfare (legal custody) and where a child will live (physical custody). The best case scenario is for parties to decide upon what type of custody arrangement will apply to their children. Regardless of whether a couple decides on custody for themselves or a Court decides for them, learning to co-parent is perhaps the most important step forward.

Co-parenting is a process where two parents work together to raise a child even though they are divorced or separated and no longer live together. While co-parenting is a simple concept, in reality it can often be difficult to master.

The following are a few important tips to consider in learning how to co-parent:

One of the most common misconceptions for family law clients is when they are “legally separated.” Some people equate separation with the drafting of a separation agreement and believe they are not legally separated until pen has been put to paper. Others believe they are legally separated once one person moves out of the master bedroom and into the guest room. In fact, North Carolina law is very specific on the definition of legal separation. In order to be legally separated, a party must be physically separated with at least one spouse having the intent to end the martial relationship.

This means there are two important requirements in order to be legally separated in North Carolina. First, the parties have to be physically apart. This does not mean a couple is living in two separate bedrooms on different ends of the home. To qualify, the couple must actually be living in two different homes or locations. Most commonly, one person leaves the martial home to live in an apartment somewhere else. Separation can also include, however, an overseas deployment or temporary change in duty station (so long as the second requirement is also met). Second, at least one person in the relationship has to have the intent to end the martial relationship. This means at least one spouse has decided the marriage is over. The law does not require communication of this intention or desire to the other spouse, but communication is certainly an easy means of proving the exact date of separation. While separation agreements are great tools to use in addressing many of the issues which will arise in a divorce, an agreement is not required to be legally separated.

Once a couple has been legally separated for one year, they may file for a divorce. A party may file for a divorce in North Carolina so long as one person has been living in this state for the last six months.