In North Carolina, legal separation occurs when a husband and wife physically separate from one another and at least one person does so with the intent to live separate and apart from the other thereafter. Many people assume a written document is necessary to be “legally separated” under North Carolina law, but there is no such requirement.
There are two key takeaways for the requirements of separation that often create problems. First, you must actually live apart from your spouse to be considered separated. Sleeping in different bedrooms or even sleeping in a basement does not constitute separation. The Court has even found that a spouse living in a detached garage apartment was not separated because they regularly entered the former marital home. The best way to establish separation is for one spouse to physically move out of the home. Second, only one spouse must intend for the parties to remain separate and apart thereafter. If one party does not wish to be separated, they cannot withhold approval of the separation after different residences are established.
Divorce from Bed and Board creates an exception to the “separate and apart with the intent to remain separate thereafter” standard. With a finding of fault, the Court can grant a request for Divorce from Bed and Board, which establishes a date of separation whether physical separation has occurred or not. This claim does not dissolve a marriage but allows for the establishment of a date of separation and if commonly used in cases where finances prevent a physical separation but fault can be proven.
If you are thinking about separation or have already separated from your spouse, call us today at (704) 810-1400 to schedule a consultation to learn more about legal separation and the effect on your claims moving forward.