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North Carolina Legal Separation
Legal Separation in North Carolina
In North Carolina, a legal separation begins on the date that husband or wife move into a separate residence. The spouses cannot continue to live together in the same home and still be separated; they must live in different residences.
Legal separation is often a precursor of divorce, because the only requirement in North Carolina for obtaining a divorce is that the spouses have been separated for one year. Isolated acts of sexual intercourse during a separation do not mean the spouses have reconciled or that the one-year period must begin anew. The court considers the "totality of the circumstances" to determine reconciliation, but when a reconciliation does occur, a new separation and one-year waiting period is required before the parties may obtain a divorce.
Many married couples enter into a Separation Contract, a Separation Agreement and Property Settlement (SAPS), or obtain a Court Order that details rights and obligations regarding child support, child custody, spousal support, and division of property and debt. Separation agreements make a divorce less complicated because they are legally binding contracts, with a definite separation date, property division, financial responsibilities, alimony, and child support.
A written agreement is not required to establish a legal separation in North Carolina, but it may be necessary to sidestep legal complications, such as the purchase of real property before the divorce is finalized (called a "free trader clause"), and establish the date of separation and waive claims a spouse may have against a third party (called a "third party waiver") for alienation of affection and/or criminal conversation.
Separation becomes a binding contract once signed by both husband and wife, so it is a good idea to consult with an attorney before signing them.
A separation agreement is a legal binding contract signed by spouses, which is intended to resolve property, debt and child related issues. This can be a very complex and detailed document depending upon the unique situation of the marriage. Many spouses consult an attorney to provide this or they decide to prepare their own.
Grounds for a legal separation in a no-fault divorce from bed and board, which is a legal separation, are abandonment, adultery, alcoholism, cruel and inhuman endangerment, “personal indignities rendering life burdensome and intolerable,” and “turning out of doors.”
Either spouse must be resident of North Carolina for at least six months, and the action is filed in the county of residence of either spouse.
The separation papers must be served on the respondent.
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