Unlike many other states, North Carolina law does not allow for fault-based divorce grounds. So if a spouse abandons or cheats on the other spouse, they cannot file for divorce on this basis. Instead, North Carolina is an absolute divorce state, meaning a couple is required to be separated for a full year before a divorce can be sought. Once the year and a day since the date of separation has passed, either spouse can file for an absolute divorce based solely on the passage of one year’s time. Because of the nature of an absolute divorce, a couple’s date of separation is an incredibly important date.
When is Your Date of Separation?
A couple has to live separate and apart during the one-year time frame. Living in separate rooms in the same house is not enough to establish a separation. Therefore, the date of separation is the date that the couple actually moves into separate residences.
In addition, it must be the intent of at least one spouse to separate. Absent that intent, the fact that a couple has lived apart for a year is not enough to establish a separation. It is also important to know that if a couple reconciles during their separation period, the separation has ended and they must separate for another full year if they subsequently decide to get divorced.
It is not required to take any legal steps when separating, such as filing a notice with the court. However, it is highly recommended to attempt to reach a separation agreement. This agreement can provide for the terms of the separation, living arrangements, property division, alimony, child support, and child custody during the separation period. This can provide certainty and stability during a very uncertain time.
Why is This Important?
The date of separation is significant for numerous reasons. First, it determines when you can get divorced. After making the decision to divorce, a year is a long time to have to wait. In many states, a couple does not have to wait nearly that long to file for, and even obtain a divorce. But there is some benefit in knowing that you can file for divorce exactly a year and a day after you separate.
The date of separation is also important regarding property division. When determining an equitable division of the marital estate, a court has to look at the fair market value of marital property and debt as of the date of separation. This can make a big difference the more complex the marital estate. In addition, property acquired and debts assumed after the date of separation are no longer part of the marital estates. And finally, the court must also look at the value of divisible property between the date of separation and the date of distribution.
New Direction Family Law
As you have gathered, there is a lot to think about and specific actions you must take when you decide to separate and divorce. If you are thinking about divorce or want to talk about your options, contact New Direction Family Law. We are a North Carolina family law firm that represents clients in all legal issues regarding separation and divorce, property division, alimony, child custody, and child support. Let us represent you. We proudly serve Wake, Johnston, Lee, Harnett, Cumberland, Nash, Granville, Franklin, and Durham counties. Contact New Direction Family Law at (919) 719-3470 to schedule a consultation or reach us online at our website.
Sarah J. Hink
New Direction Family Law