Equitable Distribution Without Divorce in North Carolina

By Heather Frances J.D.

North Carolina requires spouses to live apart for a certain time as one of its grounds for obtaining a divorce, but that doesn’t mean you need a judge to grant you a legal separation before the divorce. Instead, you and your spouse can agree at any time before you fulfill the requirement to live apart about how you want to split your property.

North Carolina requires spouses to live apart for a certain time as one of its grounds for obtaining a divorce, but that doesn’t mean you need a judge to grant you a legal separation before the divorce. Instead, you and your spouse can agree at any time before you fulfill the requirement to live apart about how you want to split your property.

Separation Agreements in North Carolina

North Carolina offers only two grounds for divorce: one year’s separation or insanity. Though almost all divorces are based on separation, you and your spouse can create a separation or settlement agreement before or after you split up to address property issues or other terms of a divorce. Once you sign a separation agreement, it is legally binding as a contract, but you do not actually have to file for divorce a year later. Even if you remain separated after the year is up or get back together with your spouse, your separation agreement remains a legally binding contract.

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Divorce from Bed and Board

Signing an agreement is the most common way for spouses to separate in North Carolina, but you can also petition the court for a “divorce from bed and board” under some circumstances. Divorce from bed and board is similar to legal separation in many ways. It allows a judge to decide property distribution and other issues without actually terminating your marriage, but it is not available under all circumstances. You must be able to establish evidence to prove one of six fault-based grounds, including abandonment, cruel treatment or adultery. If you qualify for divorce from bed and board, the judge can split your property and even force you or your spouse out of your marital home.

Post-Divorce Proceedings

Unlike other states, North Carolina allows spouses to divorce without first resolving property settlement issues. If you and your spouse cannot reach a settlement agreement, you can still obtain a legal divorce, but during the divorce proceedings you must reserve the right to revisit property settlement issues after the divorce. If you do not ask the court to decide property issues later, and they are not decided during the divorce proceeding, you lose the right to go back to court and ask for a property division order later after the divorce is final.

Equitable Distribution

If you and your spouse ask the court to divide your property, it will use its judgment to make an equitable distribution. This does not necessarily mean an equal split, though most judges favor equal divisions of property in most cases. North Carolina courts consider several factors before dividing marital property, including the length of the marriage, your ages and health, other support obligations, the contributions each spouse made to the marital property, and the earning capacities and financial situations of the parties. The court does not follow a specific formula to automatically decide how property must be split.

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Laws on How to Prove I Am Legally Separated in North Carolina

References

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Alabama State Legal Separation Laws

Married couples in Alabama who do not wish to divorce but no longer wish to live together have the option of petitioning the court for a legal separation. While Alabama law does not require couples to undergo a separation period prior to divorcing, a judge may order a temporary separation before granting a divorce. A couple has the right to separate at any time, but living at separate locations does not constitute a legal separation. A legal separation is similar to a divorce in that a court order dictates the terms of property division, child custody and so on -- and you must abide by those terms.

How Many Days Apart Equals a Legal Separation?

Legal separation is not typically defined by the amount of time you and your spouse live apart. In many cases, it depends on whether an agreement or a court order is in place that governs the terms of your separation. State laws vary, and you may be legally separated when an agreement or court order exists, even if neither of you has moved out of the marital home yet.

Divorce Decree Information in Virginia

Virginia offers two types of divorce: a bed and board divorce, which offers separation but not complete legal end to the marriage, and matrimonial divorce, which ends the marriage completely. Both types require residence in Virginia, as well as adequate grounds for divorce. Once these grounds are proved, the judge will issue a decree of divorce, which dictates what the spouses must do about alimony and property distribution.

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