Separation in North Carolina Overview
The information below is from the references below.
- NC Child Support Guidelines
- Separation in NC
- Free NC Child Support Calculators
First, separation in North Carolina does not require a written agreement. Therefore, you do not need a separation agreement or any other document to be legally separated in North Carolina. In order to be considered separated, you need the following:
- Living in different homes
- One of you intends to get a divorce
- Both parties do not have to agree to the separation
You are not legally separated if your relationship has ended and you:
- Live in the same house
- Live in different homes and neither of you wants a divorce.
You are legally separated on the date you meet the conditions above. Keep in mind, you can't live in the same home but in separate bedrooms to be considered separated.
Tip: There may be exceptions here. For example, a friend of mine and their spouse were considered legally separated even though they lived in the same house. They had a workaround where one of them lived in the basement. After all, it does save money. Not everyone can afford living arrangements for 2 mortgages.
Tip: You must be legally separated for one year before filing for divorce
Does a separation in North Carolina require an agreement?
No, you don't need a separation agreement. If you do put one together, assume the same conditions stated in the agreement will be the same terms in a divorce.
The separation agreement is a contract between spouses who are contemplating a divorce. It can include anything the two of you agree to includes agreed-upon terms dealing with various issues related to the separation,
- Who pays what bills
- Who will live in the home
- Where the children will live
- Visitation schedules
A legal separation agreement includes many more details and is typically structured similar to a divorce order. For example, here are a couple of documents typically included.
Do you need an agreement?
You do not need a separation agreement to be legally separated. It can be smart to put one together because it can help resolve issues now before the marriage ends. One example, you can decide who keeps what, like furniture, 401ks, cars, etc. Be careful making the decisions now as they may become permanent in the final divorce agreement. If done right, you can avoid going to court and possibly save thousands in attorney fees.
How do I get a separation agreement?
There are a couple of ways to get a separation agreement:
- Go to your local courthouse and ask them for help – Free?
- File online – Lowest Cost
- Work with a mediator – Mid Cost
- Find an attorney – Highest Cost
If I do create a separation agreement, what's required?
- Must be in writing
- Signed by both of you
Tip: Make 3 copies. Each of you keeps one and give the third to the courts.
Does a separation agreement include custody and child support?
A separation agreement can be just like a divorce agreement, and you can include custody and child support. The agreement can change if one of you files a custody case then a judge can change it. In my personal experience, it will rarely change.
What is a Divorce from Bed and Board (DBB)?
A Divorce from Bed and Board (a “DBB”) is a court-ordered separation. These are only for limited circumstances where one of you can prove issues such as drug abuse and/or infidelity. Just like a regular separation, you will need to wait one year before you can file for a divorce.
Tip: This answers the same question as, “Can a court order a separation?”
Separation and Dating in NC
Yes, you can start dating once you are separated.
Non-lawyers are frequently surprised to learn that a spouse can sue for money damages on North Carolina based on allegations of emotional damage caused by a 3rd party to the marital relationship. These lawsuits for alienation of affection and/or criminal conversation are usually brought by the innocent spouse against the guilty spouse's lover, but an alienation action can also be brought against someone like an in-law or another close relative who has advised a defecting spouse to leave the marital relationship. There's a 3-year statute of limitation for criminal conversation and alienation of affection, pursuant to N.C.G.S.
Section 152. This statute begins on the date that alienation occurred, that is determined by a court on a case by case basis. Fairly high dollar premiums in such cases have existed here for a number of years, a fact not usually known. As long ago as 1926, for example, a jury in Macon county issued a verdict in the amount of $12, 000 against the lover of plaintiff's wife. A 1931 jury in Forsyth County held against plaintiff wife's father in law for $38, 000. A Rowan County jury awarded $30, 000 against a husband's girlfriend in 1969. In 1982, our Court of Appeals affirmed a jury verdict in the amount of $25, 000 in compensatory damages and another $25, 000 in punitive damages.
A 1990 Forsyth County jury award of $300, 000 in punitive damages for alienation was sustained on appeal, even though the court received the compensatory award for $200, 000. At the past several years, however, North Carolina juries became even more generous, in 1997 alone handing down $1.2 million against a female lover in Forsyth County and assigned another jilted wife one million dollars in Alamance County and a deceived husband $243, 000 in Wake County. In late 1999, a judge in Durham County valued compensatory damages in a case brought by a husband against his wife's lover at less than $3, 000 in compensatory damages, but the judge still awarded $40, 000 in punitive damages on the criminal conversation claim.
Since our Supreme Court refused to abolish these causes of action in the year 1984 and since our legislature has also shown no strong interest in doing so since that time, sizeable harm awards remain a real possibility in North Carolina. In the present time, more than 200 alienation actions are filed in an average year. The date of separation is an essential date in the alienation of affection and criminal conversation cases. Our courts have decided that conduct that occurs before the date of separation is relevant to these kinds of actions. It is because a claim of alienation of affection must prove that, among other stuff, the defendant's malicious conduct contributed to or caused the loss of affection within the marriage.