North Carolina requires a separation before the parties can file lawsuits for divorce and for equitable distribution. A spouse can file for divorce (becoming unmarried) one year and a day after becoming separated and a spouse may file for alimony the day of separation. But what is a separation? The answer is that separation occurs when the parties live in separate residences without maintaining the marital relationship with the intent to not be in a marital relationship.
The following will illustrate various aspects of being separated or not:
A. You are not separated if you are simply staying in separate rooms in the house or apartment.
B. If you are living in different cities because a spouse is employed and has moved away for the job, but neither party has formulated a desire to be separated and the parties maintain the marital relationship (sharing incomes and expenses, doing things together when in the same city, sex, etc.) then you are not separated.
C. If you are living in separate residences but one of you returns on the weekends to cut grass, take the kids to sporting events, and the like and the neighbors cannot tell you are separated because the one who moved out was travelling for work during the week anyway, well you have an issue where one judge may find a separation, but a different judge may not.
D. If you are separated and want to be divorced after a year but have sexual relations with your spouse once in while or even go on vacation with her and the kids; you are still separated.
E. If a spouse moves to a different city for employment with no intention of separating but after a week or month or a few months decides “hmm, I am enjoying this, I think I want to be separated and then decides “yeah, I am separated” but does not inform the other spouse. Guess what? You are separated. There is case law in NC to that effect. Only one person needs to intend to separate and they need not inform the other spouse; however, it’s a good idea to tell someone in case the date of separation is in dispute. In fact, it is best to inform the other spouse…in writing.
F. There is no such thing as a legal separation in NC. You are legally separated when the parties live in separate residences without maintaining the marital relationship with the intent to not be in a marital relationship. However, there are still issues that may need resolution by a separation agreement or lawsuit if you cannot agree; these issues include custody, child support, alimony or waiver thereof and property settlement.