When Are We Recognized as Separated by the State of North Carolina?

By Jim Warren

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One of the first questions I’m often asked in my capacity as a divorce attorney centers on the “one-year separation.”  People generally know there’s a one-year separation requirement for divorcing in North Carolina, but that’s often the extent of their knowledge on the subject.

Today, we’ll give a full explanation of this concept. In North Carolina, you must meet certain criteria in order to pursue an absolute divorce. First, you must be a citizen and resident of our state for at least six months (this is an often-overlooked provision of the statute). In addition, you must allege that you have lived continuously separate and apart without resuming the marital relationship for the statutory period of one year. In order to meet the threshold of proof for separation for a year, you must prove that you live in different residences, pay separate sets of bills, have separate accounts, and are no longer physically intimate on a regular basis (the law permits isolated incidents of sexual intercourse).

Misconceptions

A main source of misconception in the general public regards how “official” a separation must be to qualify for the one-year period mandated by North Carolina statute. In fact, it doesn’t have to be “official” at all. You don’t have to file any court documents, nor are you required to execute a separation agreement to start the clock ticking.

Another misconception regards the subject of the law itself. Statute is concerned with whether or not you have lived continuously and separate and apart without resuming the marital relationship for the statutory period, not as a means of determining that the marriage was ending. This stands in contrast to the notion of a “legal” separation, where parties draw up a document—usually with divorce attorneys—that meets certain goals related to asset distribution and child custody.

We just addressed what “starts the clock,” but what about stopping it? If you reconcile fully, then any progress you’ve made toward that one-year mark is null and void (and you probably don’t care). If you do resume physical relations regularly, while maintaining all of the other trappings of physical separation, the court may have an issue with granting your divorce. All you really have to do is move back in together, and the clock stops, as far as the court is concerned. The key to remember here is whether you are holding yourself out as spouses to the community, not whether or not you are actually intimate in the privacy of your own home. Of course, having intimate relations is certain evidence of reconciliation.

One more note on this topic: we rarely see people actually fight about whether or not they are separated, but when they do, it’s for an important reason. For instance, let’s say the parties have been separated for a long time.  However, one party denies that the parties have ever been separated.  The party denying the separation may be simply trying to get a greater interest in the other party’s retirement benefits or appreciation in other marital assets. 

Prove It

There are more ways than you may think to prove you’ve been physically separated and the duration of your separation. The most obvious documentation pertains to your residence, such as lease agreements and mortgages, as well as household and utility bills like water, electric, cable, and internet.

You can also use bank statements, dating back to the account opening, that show individual ownership of the accounts.  We can even use voter registration cards—folks often need to change precincts due to the physical move from the family home. Drivers’ licenses also corroborate a move, while military orders can prove the impetus for your move if you’re deployed to another country or moved to a base in another area or state.

At Warren Family Law, we’ve been providing advice and counsel for those separating and divorcing for more than 35 years. We’ll take the time to educate you on different aspects of your separation and divorce, so that you aren’t unwittingly hurting your case. Contact us today to get started on your journey to a better life.