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

by Beverly Bird

North Carolina is one of the easiest states in which to end your marriage. It’s a no-fault state. Absent rare circumstances, such as a spouse's insanity, spouses must live separately, in two different residences, for a year before one can file for divorce. However, one year and one day after you separate, you can begin the legal process and terminate your marriage relatively quickly. North Carolina law does not give your spouse many options for contesting the divorce and you do not have to resolve issues of custody first.

Required Proof

You don’t have to file anything with the court in North Carolina when you begin your separation. When you file your complaint for divorce, you must state within it that you’ve met the requirements for a one-year separation, and that you and your spouse have lived in different residences for the entire time. Your word that you’ve lived separately for a year and did so with the intention of divorcing is good enough for the court. If there were moments when you contemplated getting back together, and even if you engaged in sexual acts during those times, you don’t have to include it in your complaint. Since 1987, North Carolina law allows the court to consider the “totality” of your separation, meaning an occasional act of sexual intercourse does not automatically indicate you intended to end your separation and resume your marriage.

Contesting the Grounds

Your spouse can contest your separation grounds in North Carolina only if he can give the court documented proof that you did not reside apart for the entire year. He can’t contest the divorce simply because he doesn’t want to end the marriage. The fact you want the divorce is enough. However, if you include a request for property distribution or alimony in your complaint, your spouse does have the right to contest those issues.

Court Appearance

After you file your complaint for divorce, you must officially serve it on your spouse. North Carolina allows you to forward it to him by certified mail or you can ask the county sheriff to deliver it to him. Your spouse has 30 days to respond. He would generally do so only if he wants to prove you didn’t live separately for a year or if you asked for relief, such as for alimony or property division, and he doesn’t agree. After the 30-day period has expired, you can request a court date. You’ll appear before a judge and the judge will ask you to confirm, under oath, that you’ve lived apart in different residences for a year. Your testimony is further proof of your separation, in addition to your statement in your complaint. If your spouse contests anything about the divorce, the judge will most likely set a trial date at this hearing so he can decide the issues of contention between you.

Other Factors

North Carolina is a rare state that allows you to divorce without first deciding issues of custody, property and support. You can if you want to, but you don't have to. The court will issue a decree of divorce anyway. You and your spouse have the option of working out a marital settlement agreement while you’re waiting out your year’s separation. If you're successful, the court will incorporate the agreement's terms into your divorce decree. Alternatively, you can ask the court in your divorce complaint to decide these issues for you; this usually necessitates a trial. Your third option is to reserve the right to have the court decide these issues for you at a later time, post-divorce. If you elect to do this, you must tell the judge at your hearing. If you don’t resolve issues of property and support prior to your divorce being final, and if you don't reserve the right to have the court decide them later, you generally lose the opportunity. You're barred from addressing them post-divorce. Issues of child support and custody are different. You can ask the court to litigate these issues at any time.