This is probably one of the most frequent questions we as family law attorneys at Law Firm Carolinashear when meeting with clients in our initial consultation. Movies and television shows have led viewers to believe that before you are separated from your spouse, you must have an agreement in place or some other document signed by both spouses declaring that you are separated. While this may be the case in some states, in North Carolina no document or other writing is required in order for spouses to be considered separated. Spouses are considered separated under North Carolina law when the following two things happen: (1) one spouse forms the intent to separate from the other spouse and (2) the spouses physically separate and reside in separate residences.
When discussing separation with clients, there are often numerous questions that arise including:
Question: My spouse did not tell me that we were separating, but he or she has moved out. Are we separated?
Answer: Most likely, yes. Only one spouse has to form the intent to separate and there is no requirement that the spouse forming the intent must communicate their intent to separate to the other spouse in order for the spouses to be considered separated under North Carolina law.
Question: My spouse and I are sleeping in separate bedrooms, are we separated?
Answer: Most likely, no. There must be an actual physical separation, which generally requires the spouses to establish separated residences, and if you and your spouse only move to sleeping in separate bedrooms, you are likely not separated.
Question: My spouse and I want to take a break for 30 days, are we separated?
Answer: Most likely, no. In order to be separated, the intent of one spouse must be that the separation is for an indefinite period of time. Separating for specified periods of time, will not trigger the clock to begin running on the required one year separation period to be entitled to a divorce in North Carolina.
Question: Do I need to file something with the Court to be separated?
Answer: No. There are no documents that must be filed with the Court to be deemed separated. Parties often enter into Separation Agreements which address the separation as well as numerous other aspects related to the dissolution of their marriage, but these are not required.
Question: I would like to separate from my spouse, what should I do?
Answer: Contact one of our Board Certified Family Law Specialists at Law Firm Carolinasto discuss your case and your options.