The decision to end a marriage is an incredibly heavy one. It signifies the end of one of your most significant relationships and the dissolution of your family unit. For these reasons, it is incredibly common for couples to reconcile at some point prior to actually going through with a divorce.
In fact, because life is fluid and people change their minds about divorce, North Carolina has implemented legislation that a married couple must separate for an entire year before they can seek an absolute divorce. This means that they must be separated and live in different homes for at least a year before they can file a petition to divorce.
While some states actually make couples wait a year and a half to seek a divorce, couples in North Carolina find that a year can feel like a really long time and that a lot can happen in that year. When the law requires that couples live “separate and apart” for a year prior to obtaining a divorce, it means one consecutive year.
So what does the law look at when determining whether the spouses have created a break in that consecutive year? Whether there has been a “resumption of marital relations.”
The Resumption of Marital Relations
The North Carolina General Statutes defines the resumption of marital relations as a “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” Significantly, “[i]solated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.”
In other words, engaging in sexual intercourse with your spouse does not automatically end your separation, nor can a court find that there has been a resumption of marital relations based on “isolated” incidents. Instead, the court looks to the totality of your circumstances. This may include evidence that you held yourself out to the community as a couple during the separation period, if you moved back in together, or if you frequently stayed at each other’s residences.
If a court determines based on the totality of the circumstances that a couple resumed their marital relations during their separation period, then that effectively cancels out the time the couple was separated up until the reconciliation and restarts the separation clock.
Contact New Direction Family Law
If we’ve learned anything in our years of family law practice, it is that separations are hard and life is fluid. A lot can happen in a year while people wait to obtain an absolute divorce. If you are seeking a divorce, there is a lot that you need to know. The last thing you want to do is to waste your own time or to waive critical legal rights. Contact New Direction Family Law. Our attorneys are thoughtful, meticulous, and know the law. Let us stand with you. Contact our office at (919) 719-3470 to schedule a consultation or visit us online through our website.
Sarah J. Hink
New Direction Family Law