Statistically, around half of marriages ultimately end in legal separation and, ultimately, divorce. While some separations are amicable and others are less so, they are rarely quick or simple affairs even in the best of circumstances.
When a couple decides to separate, there are many questions that must be answered. How should the marital property be divided? How will child custody be determined? What amount of child support or spousal support is appropriate?
Often, one of the most amicable and affordable ways to settle these and other important questions is via a separation agreement signed by both parties. When successful, a separation agreement can save families the pain, expense, and frustration of a court battle and give couples a better chance of maintaining amicable personal relationships after separation.
In this post, we will discuss the difference between separation and divorce in North Carolina, what a separation agreement is, how they work, and when couples should consider one.
A separation agreement is a private contract between married individuals who intend to separate or are separated from one another.
Over the course of a marriage, couples naturally share and mix property, assets, and income. They make mutual decisions about where to live, what to buy, and how to raise any children they share. The separation agreement can temporarily or permanently resolve most or all the issues that would come up in a divorce, including:
Once signed, separation agreements are legally binding on both parties. Under North Carolina law, a separation agreement must be in writing, and signed and notarized by both parties.
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Separation agreements can only be undertaken by couples who have already separated, or who will separate immediately after the agreement is signed. The terms must be agreed to willingly by both parties, not under duress or coercion, and with full knowledge of the relevant facts.
Under North Carolina law, a couple is considered separated if, and only if, both of the following are true:
Under North Carolina law, there is no paperwork that needs to be signed to make a separation official. Once one spouse moves out with no desire to return, the couple is considered separated.
If you are still living with your spouse and continue to do so after a separation agreement is signed, you will not be considered separated, and your separation agreement may be considered void by North Carolina courts.
Couples are considered separated if they meet the definition we discussed above: they are living separately, and at least one spouse intends the separation to be permanent. Once the couple has been continuously separated for at least one year, they can permanently dissolve the marriage by filing for absolute divorce.
It’s important to understand that a separation agreement does not make a couple legally separated in North Carolina, and one is not needed for a couple to be considered separated or divorced. Unlike many other states, North Carolina does not have an official process or legal status for legally separated couples. Under North Carolina law, there is no legal distinction between couples that are separated but not yet divorced versus those who are still together.
However, that does not mean couples need to wait until divorce to begin resolving questions about property division, child custody, and other important matters. The separation agreement is not affected by the divorce and remains in full force and effect once the divorce is granted. For many couples, a separation agreement is the quickest, fairest, most private and least contentious way to proceed.
