The decision to separate with the intention to divorce is an intensely difficult and personal one. A long-term relationship is incredibly hard to end: you are voluntarily choosing to change your entire life and leaving behind a long history with your partner. This is especially true when there are children involved. Overall, the situation is a fluid one, and it isn’t unusual for couples to try to work things out instead of divorcing. Legally, this is referred to as reconciliation.
What Constitutes a Reconciliation?
Absolute divorce in North Carolina requires a separation period of one year, during which the couple must live “separate and apart.” This means that they must be residing in separate residences. Reconciliation is the voluntary process of reviving a marital relationship, ending the separation. Courts look to the “totality” of the couple’s actions and circumstances when determining whether a reconciliation has occurred.
Significantly, sex intercourse by itself does not constitute a reconciliation. While this is a factor, courts also look to other evidence, such as: (1) if the couple resumed living together; (2) how long they lived together; (3) whether separate residences were still being paid for; (4) if the couple was holding themselves out as a couple to friends and family; (5) whether they were appearing together in public; (6) whether each spouse intended to reconcile; and (7) whether they were acting financially as a married couple.
What is the Legal Impact of Reconciliation?
If you are considering reconciling with your spouse during your period of separation, you should speak with your attorney, as there are critical legal consequences in doing so.
- Excusing Certain Bad Acts. If your spouse has committed adultery, this conduct can be considered as a factor when the court makes an alimony award. However, if you reconcile with your spouse with knowledge of the adultery, then the law says that you have essentially forgiven your spouse of this transgression. This waives your ability to hold your spouse accountable for the adultery in a future alimony proceeding.
- Date of Separation. If a couple reconciles during the period of separation, this resets the date of separation for purposes of an absolute divorce, even if the couple separates again. The couple will then need to be re-separated for another full year.
- Separation Agreement. If a couple is found to have reconciled, a separation agreement, or provisions of the agreement may become voidable. This is because the agreement was designed to address property, alimony, custody, and child support during the separation and anticipating divorce; however, this purpose no longer exists. However, it is not uncommon for separation agreements to contain provisions that remain in full force, even if the couple reconciles.
- Property Division. The date of separation is of critical significance when it comes to property division, which is valued at the date of separation. If you reconcile then later separate again, you essentially reset this date to the re-separation date for purposes of the valuation. Further, property acquired after the initial separation date may now be classified as marital property and subject to division.
New Direction Family Law
If you are considering reconciliation with your spouse, contact New Direction Family Law. Reconciliations can have complex legal implications, especially if you have a separation agreement. We want you to be fully informed of these implications before making a decision. We have twenty years of combined legal experience helping clients in all areas of family law, including separations, divorces, and child custody determinations. Call New Direction Family Law at (919) 719-3470 to schedule a consultation, or visit our website.
Sarah J. Hink
New Direction Family Law