Your marriage is on the rocks and despite your best efforts to reconcile, you and your spouse have made the decision to separate. You should know, however, that for legal purposes simply living apart does not necessarily mean you are separated.
Legal separation in North Carolina
Under North Carolina law, you and your spouse are legally separated if you both reside in different homes and either you, your spouse or both of you intend that this separation is permanent.
In general, even if you and your spouse want to divorce, but you still live together in the meantime, you are not legally separated. Similarly, if you and your spouse are taking a break and living apart, but you both intend to reconcile your relationship, you are not considered legally separated.
Under North Carolina law, to divorce you and your spouse must be separated for a year and a day, meaning you do not reside together and either you, your spouse or both of you must mean for the separation to be permanent.
Do I need a separation agreement?
In North Carolina, you do not need to execute a written separation agreement in order to legally separate from your spouse.
Still, many couples find a written separation agreement to be helpful as they transition from married to divorced. In a separation agreement, you can agree on who will pay what bills, who will continue to reside in the marital home and who will have custody of the children and when. Separation agreements can also cover property division and spousal support.
The legal issues agreed upon in a separation agreement can be integrated into a final divorce settlement if they are appropriate and are working for both spouses. This could make the divorce process run smoother and can avoid the heated arguments that can sometimes result when a couple disagrees on a divorce legal issue. If you and your spouse are considering separating and want to draft a written separation, it is to the benefit of both of you to have your own attorney to ensure the final document is fair.