Are Legal Separation Papers Necessary in North Carolina?

By Heather Frances J.D.

In most states, spouses must address the terms of their divorce at the same time they end their marriage, but North Carolina’s divorce process is unique in that it allows spouses to divorce without addressing issues like property division, alimony or custody. A North Carolina divorce decree simply ends the marriage, nothing more. Therefore, a signed separation agreement can be very important, so that spouses have something to govern their conduct during the divorce and settlement process.

Grounds

North Carolina only recognizes two grounds, or reasons, for divorce: insanity and separation for at least one year. Unlike many other states, North Carolina does not permit spouses to file for divorce on fault-based grounds like adultery, abandonment or cruelty. Instead, North Carolina spouses must live in separate houses during the one-year separation period, but this separation period is not considered a “legal separation,” nor does North Carolina law address legal separations.

Separation Requirements

Spouses do not have to formally document their separation for it to be effective as grounds for divorce or file any paperwork with the court to establish a date of separation. Though spouses cannot legally file for divorce until they have been separated for at least a year, courts typically do not ask the spouses to provide proof of the separation period. Instead, North Carolina courts take spouses at their word that their separation was at least one year and one day. Although North Carolina does not require spouses to form or file a separation agreement, it may be wise for them to still create one addressing important issues, like child custody, during the divorce.

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Settling on Terms

Divorcing spouses must address the terms of their divorce, including topics such as custody, property division and support. They can do this by negotiating a written, signed separation agreement. If they cannot agree, they can ask the court to decide these issues for them by filing a second petition with the divorce court, but this is a separate action from the divorce itself. Though neither a separation agreement nor a petition asking the court to decide these issues is technically required, if the spouses fail to reach agreement and do not ask the court for a resolution before the divorce is complete, they forfeit the right to do so after the divorce is final.

Children

Issues regarding children are an exception to the rule that issues must be addressed before the divorce is final. Parents can go to court at any time to resolve custody and child support issues, but they cannot use their child custody or support issues to reopen issues of property division or spousal support after the divorce has been finalized if they did not address them during the divorce process. The litigation of child-related and other issues may take place after the divorce is final, but the petition reserving the right to have the court decide these issues later must be filed before the divorce is final. Otherwise, the court can only address child support and child custody after the divorce is final.

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How to File for Legal Separation in North Carolina
 

References

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