Divorce vs Legal Separation

You may be wondering what the difference between legal separation and divorce in North Carolina is. A divorce is the final judgement that dissolves a marriage, while a separation can often be reversed simply by entering into a new agreement with a partner and/or going back to living together as married spouses.

To obtain a full divorce in North Carolina, the legal parties involved must have been separated for at least one year before applying for a divorce with the court. Married couples are considered to be “legally separated” in North Carolina at the point where they move into separate residences with at least one person intending to remain suspended on an indefinite basis. During this separation period and before requesting a divorce, the spouses may agree upon things related to divorce such as spousal support, property division, child custody, and child support. There are no requirements that state either party has to proceed with a divorce after the year passes. However, one spouse cannot prevent the other from trying to process a divorce as long as the separation has lasted for at least a year.

Legal separations work differently in North Carolina than they do in other states.

For example, it is rare to find an actual decree of legal separation from the courts in North Carolina after one spouse moves home. In order to obtain this, one spouse must prove that the other spouse committed a marital fault. However, achieving a “legal separation” is possible through negotiating and agreeing to a separation agreement with your spouse.

Separation agreements are private agreements – not submitted to a court – between spouses where they agree that they will begin living separately apart from one another. These contracts also generally cover how spouses will divide up their property and debts and handle spousal support. Spouses may also agree on child support and child custody in such a separation agreement.

An alternative way to go about things is to incorporate the child custody and support terms into an agreement that is then submitted to a presiding family court judge to approve. These agreements are known as “Consent Court Orders” upon being entered by the judge.

A legal separation that has been established by a contract where the spouses involved agree to live separately, but not necessarily get divorced at any time, can often be reversed just by the parties involved returning to their martial relationship and living together again. Typically, these separation agreements contain language that states the agreement will become null and void in terms of any terms that haven’t been carried out already if the parties involved return to their living together as a married couple. It’s important these agreements are drafted and written carefully as the effects of a separation agreement, in particular what happens in the event the couple reconciles, varies depending on the terms and written language of the legal contract.

Here are the most common reasons that couples choose to stay legally separated instead of filing for a divorce;

Religious Reasons

Some couples choose to remain married despite being separated for moral and/or religious reasons. Legal separation offers a viable alternative to divorce as long as neither party wants to remarry and enter a new relationship.

Children

Divorce brings about it many lifestyle changes, some of which are particularly difficult on children. As such, some couples choose to remain separated and delay their actual divorce until children are better mentally prepared for how it will change their home and their lives.

Time and Perspective

A legal separation can help if a couple is unsure that divorce is the way to go. They provide space and give a couple time to think. It gives them a taste of independent life and helps them decide if this is really what they want. Spouses are able to change their mind whenever they want while they remain legally separated. Separations can offer the clarity necessary to make the final decision about whether or not the marriage can be reconciled or if divorce is the only option.

N.C. Gen. Stat. § 52-10.1 outlines the execution of separation agreements. For any of the cases listed above, these agreements can clarify how child support and custody will be managed, as well as how property will be divided, who is responsible for marital debts, and spousal support obligations.

Divorce might be the better option for couples in North Carolina that know that reconciliation is unlikely to happen or is not the desired outcome after spending a year legally separated. Here are some of the reasons that divorce may be the preferred option over an indefinite legal separation in North Carolina;

Certainty

When both parties are resolved to end the marriage and begin anew, opting to get divorced may be better than staying legally separated in the long-term.

Wanting to Date and/or Remarry

If either spouse wishes to remarry then they will require a full legal divorce. Additionally, being in a relationship with someone else might influence how a judge awards custody in the event that one parent allows their lover to stay the night while they have the children with them.

No matter how a couple chooses to proceed, they must have been separated for at least a year before they are able to file for divorce. However, there may be a time when individuals would prefer to stay legally separated instead of divorcing. If you would prefer to be legally separated, then you may want to have a separation agreement written up. If you need any help at all with a separation agreement or divorce, or just need any advice or an informed opinion on which choice would be best for you, then you should consult an experienced family law attorney.

There are some complex legal questions involved when deciding to be separated or get divorced in North Carolina. While your friends and family no doubt have their own opinions to share, the decision is a personal one and everyone has their own unique situations. Be sure to take the time to understand the advantages and disadvantages of being separated and divorced. The more you know the more informed of a decision you can make, and the better your prospects for having a favorable outcome when everything is said and done.