If you are considering divorce in NC, you probably have a lot of questions and…
In North Carolina, a married couple must live separately for one year before filing for divorce. During this time, the couple is still legally married, which makes issues like separating finances and establishing ownership over mutual responsibilities like debt incredibly complicated. So, what rights does a legally separated spouse have in North Carolina? Our divorce attorneys in Raleigh are sharing what you need to know about separation and how to best protect your interests.
Understanding Legal Separation in North Carolina
Technically, there is no such thing as "legal separation" in North Carolina. When a married couple decides to end their marriage, one or both parties leave the marital home or property and establish households separately with no plan to reconcile in the future. After one year, they are legally allowed to file for divorce.
During the one-year separation, there is no need to file with the courts or make the separation "official" in any way. In fact, you don't even need to prove you and your spouse are separated as the court accepts your testimony of separation when given under oath. However, if you have concerns that your spouse may attempt to delay or stop divorce proceedings, saying you were not living separately, it may protect your interests to show proof of a newly established residence, such as a lease agreement elsewhere.
Because legal separation is not recognized, legally separated spouses do not have established rights. Marital property is still considered marital property, though the behavior of one party during the separation may affect the outcome of the divorce. For example, emptying joint bank accounts or refusing to pay toward mutual debts can negatively affect divorce proceedings and the judge may rule against a party for acting with spite.
Child Support and Custody During Separation
During the waiting period, parents can go to court to establish a court-ordered child support payment arrangement and child custody arrangement. Without a court order or separation agreement, parents have equal rights to child custody until a custody agreement is established. Regarding support, the acting or agreed-upon custodial parent can also file for child support with the court.
Creating a Separation Agreement
When two people separate with the intent to divorce, it is highly recommended that both parties create and sign a separation agreement. This is a mutually agreed-upon, legally binding contract that outlines the responsibilities both parties have and how property is divided during the one-year period prior to divorce. We often draft these separation contracts for our clients that include:
- Child custody and visitation agreements
- Child support payment arrangements
- Who is responsible for paying mutual debts, like a mortgage or credit card debt
- Who is responsible for upkeep and maintenance of marital property
- Property division, including who lives in the marital home, who has use of mutually shared vehicles, and furniture
- Who keeps mutual pets
- How income taxes are filed and who can claim deductions if filing separately
For many couples, a successful separation agreement serves as the foundation for their divorce judgment. A judge will look over issues related to child support and custody to determine the legality and what's in the best interest of the child, but often, the agreement can carry over into the divorce. This saves time and money, but more importantly, this is a mutually beneficial agreement.
Schedule a Consultation with a Separation Agreement Attorney in Raleigh
If you and your spouse are separating, we can help make the process easier by helping you create a separation agreement that removes confusion and solves arguments before they start. To schedule a consultation, reach out to us today at (919) 301-8843 or fill out the form below to get started.