Divorce vs Legal Separation

Russell Family Law & Litigation • March 4, 2019

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.

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How are 529 Plans Handled in Divorce?

March 24, 2025

A 529 Plan, which owes its name to Section 529 of the Internal Revenue Code, is a tax-advantaged savings account that is designed to be used for the education expenses of the beneficiary. It is very common that parents create such an account to save for their child’s college education. So, what happens to such an account when the parents decide to divorce? 529 Plans , like other savings and investment accounts, are property. As such, in North Carolina, 529 Plans are dealt with during equitable distribution proceedings. During such a proceeding, the court will classify the parties’ property as one of three categories – marital, divisible, and separate – and then distribute the marital and divisible property among the parties. Thus, the treatment of the 529 Plan will depend upon how the plan is classified. N.C. Gen. Stat. 50-20 defines marital, separate, and divisible property as follows: Marital Property : “all real and personal property acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties, and presently owned, except property determined to be separate property or divisible property.” Separate Property : “all real and personal property acquired by a spouse before marriage or acquired by a spouse by devise, descent, or gift during the course of the marriage. However, property acquired by gift from the other spouse during the course of the marriage shall be considered separate property only if such an intention is stated in the conveyance. Property acquired in exchange for separate property shall remain separate property regardless of whether the title is in the name of the husband or wife or both and shall not be considered to be marital property unless a contrary intention is expressly stated in the conveyance. The increase in value of separate property and the income derived from separate property shall be considered separate property. All professional licenses and business licenses which would terminate on transfer shall be considered separate property.” Divisible Property : “all real and personal property as set forth below: All appreciation and diminution in value of marital property and divisible property of the parties occurring after the date of separation and prior to the date of distribution, except that appreciation or diminution in value which is the result of postseparation actions or activities of a spouse shall not be treated as divisible property. All property, property rights, or any portion thereof received after the date of separation but before the date of distribution that was acquired as a result of the efforts of either spouse during the marriage and before the date of separation, including, but not limited to, commissions, bonuses, and contractual rights. Passive income from marital property received after the date of separation, including, but not limited to, interest and dividends. Passive increases and passive decreases in marital debt and financing charges and interest related to marital debt.” Given these definitions, the classification and distribution of a 529 Plan will depend upon how and when it is created and funded. What is most important to note is that the court will not award the 529 Plan to the child, as the child is not a party to their parents’ divorce. Further, while the court may consider the purpose of the 529 Plan when making an “equitable” distribution of the parties’ property, the court will not totally disregard the value of the 529 Plan when distributing property among the parties simply because it is intended for the benefit of their child. However, the parties may take such considerations into account when negotiating a potential settlement between one another. If you are considering divorce or engaged in, or anticipate being engaged in, an equitable distribution proceeding, call our office today to schedule a consultation with an experienced family law attorney.

Do North Carolina Courts Consider Marital Misconduct?

February 26, 2025

North Carolina is considered to be a “no-fault” divorce state, meaning that a couple need not show cause or some wrongdoing in order to obtain a divorce. However, marital misconduct does play a role with regard to the issue of alimony in North Carolina. In determining the amount, duration, and manner of payment of alimony, the Court must consider a variety of factors as laid out in N.C. Gen. Stat. § 50-16.3A(b). This statute lists 16 factors which the court will consider when determining the issue of alimony . One of the most often discussed and litigated of these factors is marital misconduct. N.C. Gen. Stat. § 50-16.1A defines marital misconduct as follows: ‘Marital misconduct’ means any of the following acts that occur during the marriage and prior to or on the date of separation: Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.20(4), voluntarily engaged in by a spouse with someone other than the other spouse; Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought; Abandonment of the other spouse; Malicious turning out-of-doors of the other spouse; Cruel or barbarous treatment endangering the life of the other spouse; Indignities rendering the condition of the other spouse intolerable and life burdensome; Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets; Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome; Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome.

Navigating Holiday Stress During Divorce: Tips for Families

December 5, 2024

The holiday season is a time traditionally associated with joy, togetherness, and celebration. However, for families going through a divorce, it can also be a time of heightened stress and emotional challenges. Managing these stressors effectively can help everyone involved – especially children – navigate this season with as much peace and stability as possible. Here are some common holiday stressors families experience during a divorce and practical strategies to address them: 1. Financial Pressures Divorce often brings financial changes that can make the holidays feel especially strained. Gift-giving, travel, and hosting events can add up quickly. Solution: Set a Budget: Be realistic about what you can afford this year. Focus on creating meaningful experiences rather than overextending financially. Free/low-cost experiences could include going to a holiday parade, going for a walk downtown or a drive around town to view the holiday lights, or taking the kids to the local mall or a store to visit Santa (or even the Grinch at some locations, such as the Cotton Exchange). Communicate with Co-Parent: Discuss gift budgets and avoid competitive or extravagant gift-giving, as this can create tension or unrealistic expectations for the children. 2. Emotional Strain on Children Holidays can amplify a child’s sense of loss or confusion about their family dynamics, especially if traditions are changing. Solution: Prioritize Consistency: Whenever possible, maintain familiar traditions to provide a sense of stability. Introduce new traditions as a way to create positive memories in this new chapter. Open Communication: Reassure your children that it’s okay to express their feelings and let them know both parents are committed to making the holidays special for them. 3. Loneliness or Isolation For people going through a divorce, the first holiday following separation can feel especially lonely and isolating. It’s normal to grieve the loss of how things used to be. Solution: Lean on Support Systems: Spend time with friends, family, or community groups that provide comfort and connection. Focus on Self-Care: Use this time to rest, reflect, and engage in activities that bring you joy and relaxation. 4. Co-Parenting Tensions The holidays can sometimes exacerbate underlying tensions between co-parents, particularly if communication is strained or agreements are unclear. Solution: Keep Communication Businesslike: Focus on logistics rather than rehashing old conflicts. Tools like co-parenting apps, such as Our Family Wizard or Talking Parents, can help keep interactions clear and professional. Put the Children First: Decisions should always prioritize what’s best for the children, even if it requires compromise. 5. Managing Extended Family Expectations Extended family members may have their own opinions or pressures about how holidays “should” look, which can complicate matters further and exacerbate holiday stress. Solution: Set Boundaries: Be clear with family members about your plans and priorities. Gently but firmly remind them that the focus is on creating a positive experience for your immediate family and avoiding negative talk about the other party or your current situation. Include Supportive Relatives: If possible, involve family members who can help diffuse stress and provide stability during this transitional time. If you are going through a divorce this holiday season and need legal representation, please contact our office to set a consultation with one of our family law attorneys.

Child Custody Picture with two parents and and child in the middle

What Should Parents Know about Child Custody in North Carolina?

October 3, 2024

Navigating child custody arrangements can be one of the most challenging aspects of a separation or divorce. In North Carolina, the legal framework for child custody is designed to prioritize the best interests of the child, but understanding the different types of custody arrangements can be complex. This guide aims to shed light on the types of child custody in North Carolina, helping parents make informed decisions.

Grandparent Visitation in North Carolina

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By: Ashley Pollard

Co-parenting

July 19, 2024

Co-parenting is crucial to ensure that children continue to receive the love, support, and guidance they need from both parents despite the parents’ separation or divorce. By working together, parents can create a stable and nurturing environment that fosters the emotional and psychological well-being of their children. Effective co-parenting helps children adjust to change, reduces feelings of insecurity, and promotes healthy development. It also models positive conflict resolution and cooperation, providing a strong foundation for children’s future relationships. Ultimately, co-parenting prioritizes the best interests of the children, helping them thrive despite the family restructuring. Successful co-parenting after separation or divorce requires open communication, mutual respect, and a focus on the well-being of the parties’ children. To best ensure the success of a co-parenting relationship, it is crucial to keep discussions child-focused, and avoid negative talk about the other parent in front of the children. Flexibility and willingness to compromise are key, as well as seeking professional help if conflicts arise that cannot be resolved independently. Prioritizing the children’s emotional and physical needs will help ensure a positive co-parenting experience. Here is a list of ideas for potential resources that may help co-parents manage and support their children’s well-being while navigating the changing family structure: Books for Children Age-appropriate books explaining separation and divorce Stories that help children understand and cope with their feelings Therapists and Counselors Child psychologists for children’s emotional and mental health Family therapists specializing in co-parenting dynamics Support Groups for Children Peer support groups for children of divorced parents In-person and online groups providing a safe space for children to share their experiences School counselors and social workers providing support and guidance Mobile Apps Apps designed to help children understand and manage their emotions Co-parenting apps with features to ensure both parents stay informed about their child’s activities and needs Books and Guides for Parents Manuals on how to support children through the transition Guides focusing on effective communication with children post-separation Guides focusing on effective communication with your child’s other parent Podcasts and Videos Podcasts offering advice on supporting children’s mental health during divorce YouTube channels with content aimed at helping children cope with family changes