Since 1987, North Carolina law allows the court to consider the “totality” of your separation, meaning an occasional act of sexual intercourse does not automatically indicate you intended to end your separation and resume your marriage.
Your spouse can contest your separation grounds in North Carolina only if he can give the court documented proof that you did not reside apart for the entire year.
The significance of committing adultery also varies from state to state.
Some states consider a couple legally separated when they have signed a separation or marital settlement agreement and relocated to separate homes.
Sexual intercourse, overnight stays, and out of town trips between spouses who are separated can sometimes blur the line as to when the date of separation occurred, especially if one party believes that such contact is made in an effort to reconcile.
If a party disputes the date of separation on the basis of reconciliation, then the court considers whether there was a voluntary renewal of the marital relationship based on the totality of the circumstances.
Your word that you’ve lived separately for a year and did so with the intention of divorcing is good enough for the court.
One spouse must file a petition with the court and a judge decides issues of property, support and custody, much as he would in a divorce.
At the end of the litigation, the court issues a decree of legal separation.
Some states, such as New Jersey, call this a divorce from bed and board.
This brochure offers some suggestions and general rules of North Carolina law. If you are not able to resolve marital problems, CONSULT A LAWYER before you or your spouse leaves the marital home. Can we be separated and continue to live in the same house? In order to be separated, the husband and wife must reside at different residences.
Do we have to sign papers in order to be officially separated? You are legally separated when one or both of you vacates the former marital residence, and begin living separate and apart with the intention of at least one spouse for the separation to be permanent.
Two main lines of inquiry that the court examines in determining whether there was a resumption of the marital relationship are whether (1) the parties held themselves out to others as a married couple and (2) the parties mutually intended to reconcile.