North Carolina is an absolute divorce state, which is a no-fault form of divorce. To obtain a divorce, a spouse needs to demonstrate that the couple has been separated for no less than one year. This means that a couple must live “separate and apart” from each other for one uninterrupted year before either spouse can file a petition seeking the dissolution of their marriage.
A lot can happen in a year, especially when it comes to ending a marriage. The decision is a big deal and can be really confusing to process. Some people change their minds and try to work it out again or even rekindle their intimacy while still intending to divorce. It is therefore important to understand what constitutes reconciliation and how it can impact your plan to divorce.
The North Carolina General Statutes defines the resumption of marital relations as the “voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances.” Significantly, “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.” A court will look beyond sexual relations and at the totality of a couple’s circumstances to determine whether the resumption of marital relations occurred. This may include that the couple is holding themselves out as married, that they are acting as if they are married, or whether they are essentially living together again.
What Are the Legal Impacts?
So what then, is the impact of reconciliation? If a court finds that there has been a resumption of marital relations during the year preceding the filing of a divorce petition, then the court cannot grant an absolute divorce. This is because there has been a break in the uninterrupted year of separation. Instead, the clock restarts as of the new date of separation from which the couple has to wait a year to seek a divorce. In other words, a couple does not get credit for the time they were previously separated.
In addition, if the parties have reached a separation agreement—which is a common way of creating certainty and stability during a separation period—then portions of that agreement can become void. This can be a highly complex contractual issueAs an example, portions of a separation agreement regarding alimony would likely be voided by reconciliation. This is why it is critical to consult with an attorney when you want to explore a divorce or seeking a separation agreement—so that you can enter your separation with open eyes.
New Direction Family Law
If you are seeking a divorce, contact New Direction Family Law. For decades, our attorneys have guided our clients toward certainty in the face of uncertain times. We understand that our role matters to our clients’ futures and take this responsibility very seriously. Our firm serves Wake, Johnston, Durham, and surrounding counties. Call New Direction Family Law at (919) 719-3470 to schedule a consultation or visit our website.
Sarah J. Hink
New Direction Family Law