Where Truth Meets Lies

Being Legally Separated

Okay, well here goes. This isn’t your typical blog type posts. Not AI. Nope, not even close. This is all written by moi, yup, ole “Ich” here. So, let’s get to it.

I hear from the “Google lawyers” that they’ve been told they need “something in writing” to be filed with the court system to be legally separated. Incorrect. And just to be clear, I am only commenting on North Carolina law.

In North Carolina, now pay attention here, this is key: to be legally separated only requires one of the two spouses to physically move out of the marital residence and at least one of them have the intent to end the marriage. It doesn’t matter who has the intent. Only one person is required to form it. Yeah , I know, most of the time, if you’re leaving, you’ve had enough, and that intent is burned into your brain. I get it.

What most people get confused is this thing we call a “Separation Agreement”. A Separation Agreement is technically a property settlement contract where spouses agreed to divide assets and debts and other matters by contract versus filing lawsuits and litigating till Jesus returns (which we know not the day nor hour). Separation Agreements are not conclusive on when spouses separate. In some instances, they execute a Separation Agreement while still living together , and then one of them shortly moves out. That’s okay. What’s not okay, is executing a Separation Agreement and then staying under the same roof. That creates major technical issues which we will discuss in another blog post.

And even if you state a date of separation in a Separation Agreement, when you file your lawsuit for absolute divorce, most judges want a day, month, and year in the lawsuit for the date of separation. Technically, the statute only requires you state that you have been separated a year at the time you file. But again, Judges want the day, month, and year because in property division claims (called Equitable Distribution), the value of your marital estate (assets and debts) is determined by the actual day, month, and year you separate. We’ll cover that too in another future blog post.

Now, if you file a lawsuit for absolute divorce, or other claims, and the other side denies your contended date of separation, yup, you guessed, it, you’re headed to a trial for the Judge to determine what is the date of separation. So, it’s a really good idea to have witnesses, or documents to prove when you, or the other side honchoed on out of the hacienda.

Now, I get questions and comments like “well, we got together and had sex a couple of times while we were separated, is that an issue”. Answer: typically, not. NC Court of Appeals decisions have ruled that isolated instances of sexual intercourse do not start the separation period over again. If there is an issue that you and the soon “down the road ex” reconciled, the court will conduct a trial on a fact-by-fact basis. There is ample case law where couples did activities together , for the children for example, but it did not resume the marriage.

So, now that you have some insight, let’s fill that Mai Tai up again, turn off Netflix, and recap:

Ready?

1. To be legally separated in NC requires physically living apart (you cannot live in different bedrooms under the same roof).
2. There must be an intent by at least one of the spouses to say “adios, goooooooooood bye”.

There’s nothing to file to be legally separated in NC. But if you file a lawsuit for, say , divorce, alimony, equitable distribution, you’ll need to state the day, month, and year it ended and one of you moved out.

Okay, now that you’re clear on that, let’s get you moving, let’s get you packed up, or the other side packed, up, and get this “divorce train a movin….”. There’s no time to waste when you’re escaping bondage and headed to the promised land of “freedom”. Say it, “FREEDOM”.,,,,say it again,,,,,,,,,,,,,,,,,,,,,,,,,,,and again, and again……………..

PS: If you’re overseas say in a job, and one of your forms the intent to end the marriage, that counts too. Remember, it doesn’t matter if you want to stay married or not, only ONE, (UNO), needs the intent.