North Carolina Doesn’t Recognize Legal Separation

Written by Jonathan Breeden

December 27, 2016

Many states recognize separation as a legal status that requires the filing of court documents and a hearing. However, legal separation is not a status that is authorized by the court in North Carolina. A couple may become separated before divorce simply by not living together. In fact, the court requires a couple to be separated for at least one year before they can file for divorce in North Carolina.

During their separation, a couple may determine child support, child visitation, spousal support, division of property, and further preparations for divorce. A compassionate North Carolina separation attorney can help you navigate the court system and reach an outcome that is in your best interests. Call Attorney Jonathan Breeden today at (919) 661-4970 to find out how he can help you.

How Separation Works in North Carolina

While some states allow couples to legally separate by filing documents with the court, such as a legal separation agreement, North Carolina does not have such a rule. The state does not require parties to file for separation with the court. Instead, the statutes say that a couple is considered separated from the day they begin to live separately from each other and at least one of the spouses intends for the separation to be permanent. If you continue to live together, you cannot consider yourselves separated. North Carolina will only recognize the separation once the parties have separate residences. Couples who maintain separate addresses for a year and at least one party intended for the separation to be permanent may then file for divorce.

There may be other elements of your relationship that could make your separation more complex. If you and your spouse have children, you will need to figure out who the kids will live with and how visitation and child support payments will work. Also, if one spouse earns significantly less than another spouse, you may need to consider spousal support payments during separation.

Getting Alimony While Separated

While a separation doesn’t require paperwork, an award for post-separation alimony does. Either party in a marriage may go to court and ask to be awarded spousal support during a period of separation. An award for alimony is based on each spouse’s financial needs, employment status, ability to work, and accustomed style of living, among other determinants.

Just as it would in divorce cases, the court examines accusations of marital misconduct when reviewing requests for post-separation alimony. If either the supporting party or the dependent party has committed marital misconduct, their actions could affect how the court awards alimony.

Determining Child Support and Custody When Separated

As with alimony, parties who have separated may want to have the court involved in awarding child support or custody. The court will determine child support payments and custody based on factors that consider the best interests of the child and allow the child to maintain the same standard of living to which they are accustomed. Those factors include the child’s age and needs, the child’s desires if they are old enough to understand the situation, the health and financial well-being of both parents, substance abuse by either parent, and many other determinations.

Contact a North Carolina Separation Attorney

You may not be required to have legal documents showing that you and your spouse have separated, but there are instances, such as when dealing with alimony or child support, when you may want the court to intervene. Talking to an experienced North Carolina separation attorney about your case may help you figure out what you need to do if you’re considering separating from your spouse. At Breeden Law Offices, we have capable attorneys in our Garner, Smithfield, and Angier offices who have helped many people with their questions about separation and divorce. Call us today at (919) 661-4970 to see what we can do for you.


Divorce In North Carolina: What You Need To Know

A book by Jonathan Breeden