2. What is the legal procedure for getting a separation?

3. How long do we have to be separated before I can get a divorce?

4. How do we decide who shall leave the marital residence? What if neither of us wants to leave—can either spouse be forced out?

5. Are we considered “separated” if we are living under the same roof, but in separate rooms and no longer engaging in sexual relations?

1. What is a Separation Agreement? Do I have to have one?

     A Separation Agreement is a voluntary contract between you and your spouse which covers important issues of the marriage after separation, such as property division, alimony, child custody, child support, and reconciliation. It is advised and customary for the Separation Agreement to be negotiated and drafted by the parties’ attorneys. A Separation Agreement is beneficial because when it is time to file for the divorce, you can avoid most of the court’s lengthy waiting periods and time tables for the above issues by simply informing the court that the issues have already been resolved, such that all that is needed is the official divorce decree.

     Of course, if the parties are very contentious or domestic violence is involved, then negotiating a Separation Agreement may not be feasible. In such cases, the parties may need to litigate the issues and have the court make the final decisions.

     In conclusion, a Separation Agreement may or may not be wise, depending on the parties and the circumstances. But one thing is certain: you are not required to have a Separation Agreement for separation, divorce, or any other matter.

2. What is the legal procedure for getting a separation?

     Most people think they have to file certain documents such as a Separation Agreement to effectuate their separation and/or to prove the separation occurred on a certain date. Further, many believe the separation is not official or valid until some documentation has been filed. You are not required to have a Separation Agreement for separation, divorce, or any other matter.

     In North Carolina, the “separation” begins the very moment you and your spouse start living in separate residences and at least one of you intended and still intends to remain separate and apart. If the parties are still amicable and open to negotiation, a Separation Agreement is certainly a helpful and necessary document in many situations (see more in Question 1 above), although it is definitely not required to begin or prove the separation itself, nor is it a prerequisite to filing for or obtaining a divorce.

3. How long do we have to be separated before I can get a divorce?

     Pursuant to NC Gen. Stat. §50-6, before either party can file for divorce, the parties must be living in separate residences for more than one year and one of the parties must have resided in North Carolina for at least six months prior to filing a lawsuit for divorce. This is important, especially if you are living in North Carolina and your spouse has left the state—as long as you have lived here for six months and you have been separated for over a year, North Carolina will have proper jurisdiction to enter your divorce decree.

4. How do we decide who shall leave the marital residence? What if neither of us wants to leave—can either spouse be forced out?

     Most people do not want to be the one who leaves first for fear that the other spouse will a claim of abandonment. However, there are three elements of abandonment that must all be met. A spouse has committed abandonment if she leaves (1) without the intent of renewing cohabitation, (2) without the other spouse’s consent, and (3) without justification. The third element is often the hardest to prove, because usually the spouse who leaves did so for a reason and therefore with justification.

     It important to remember that prior to an actual separation, each spouse has a right to possession of the marital home. Therefore, neither spouse can physically force the other one out or change the locks; if your spouse does this, you should immediately call the police. If you have no other place to go and really want your spouse to be the one who leaves, there may be other options. Under certain circumstances, the court may order your spouse to leave the marital residence if, for example, you obtain a 50-B Domestic Violence Protective Order granting such expulsion, or if you obtain a Divorce from Bed and Board, which is a court-ordered separation based on marital fault.

     If your spouse refuses to leave the marital residence but you feel that the separation must begin, then you may have no other choice but to leave yourself, and will simply have to defend any later claims of abandonment if raised. But note that once you leave, you may not be able to reenter without a court order depending on the circumstances. Therefore, you should take as much personal and separate property as possible when you leave.

     No matter what you decide, because abandonment has potential legal consequences, you should definitely consult with an attorney beforehand.

5. Are we considered “separated” if we are living under the same roof, but in separate rooms and no longer engaging in sexual relations?

     The case law is clear that living under the same roof, even if in separate rooms, does not begin the separation period. Likewise, such living arrangements would stop the separation period if you were properly separated previously, and then moved back in together. In short, the spouses must be living in separate residences.

     But note that NC Gen. Stat. §50-6 specifically states that “isolated incidents of sexual intercourse between the parties” will not stop the statutory one-year period that is required in order to file for absolute divorce. Also, per NC Gen. Stat. §52-10.2, the courts look at the “totality of the circumstances” in deciding whether the parties have resumed marital relations and thus whether the separation period has been tolled or not.