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“Separate and Apart:” What Separation Means in North Carolina

December 09, 2020

Divorce is hard. It can be emotional, contentious, painful, or maybe even bittersweet. But one thing it shouldn’t be – confusing.

At McCullers, Whitaker, and Hamer, PLLC, our Family Law team guides many families through the difficult processes of separation and divorce. We work hard to treat each client with compassion while making sure that every legal decision is fully understood and carefully considered. In this post, we’ll clarify what separation means in North Carolina and address several common questions about the separation period that precedes divorce.

Defining Separation

While separation may seem straightforward at first glance, the reality is that many people find themselves with questions about what does and doesn’t constitute separation in practice. Does it have to be mutual? Put into writing? Do I need an attorney? Should I move out? The list goes on. 

At a basic level, separation means that one party has left the relationship with the intention to end the marriage. Usually this is demonstrated by moving out into a separate residence with a sense of finality. There’s no need for any paperwork, legal action, or even mutual agreement – particularly in cases of abuse or toxicity. To put it simply, the date of separation occurs when one party moves out of the marital home for good.

In North Carolina, married couples are required to be separate and apart for one continuous year before filing for divorce. That’s why it’s so important to understand what separation means in the eyes of the law. If you and your partner decide to give your marital relationship another try (i.e. more than just a fling or one-night stand) the year will restart. According to North Carolina law, this is known as the “resumption of marital relations.”

When to Involve an Attorney

We’ve already established that you don’t need an attorney for the initial separation. It can be helpful, though, to hire one shortly thereafter. 

For most people, our advice is to hire an attorney while you’re still able to be civil with your partner. This will make it easier to negotiate, communicate, and finalize an official separation agreement that you’re both happy with. 

We know that this isn’t always possible, however. If you’re not getting along – or if your separation was caused by abuse, manipulation, withholding money, etc. – we recommend that you contact an attorney as soon as you separate. Legal intervention sometimes injects a much needed dose of courtesy and respect into an otherwise challenging situation.  

Do’s and Don’ts of Separation

While there are no set rules for the year of separation, you’ll want to think through your actions carefully and avoid doing things that might make you look bad in front of a judge or the court. 

We’ll tackle the “do’s” first.

  1. New bank account. Since you’re separated, it can be a good idea to set up a new bank account that’s independent from the joint accounts that you may have shared with your spouse. Additionally, you may want to update your direct deposit information so that any future paychecks are deposited into the new account. Why? You’re no longer a married “unit,” so your finances should begin to reflect the change. 
  2. Communicate and document. If you’re planning to split up or sell possessions on your own, try to document consent whenever a decision is made. This is as easy as an email exchange that shows your partner agreeing that you can sell the television/sofa/car/etc.

The “don’ts” are a little more lengthy. 

  1. Don’t destroy property. No matter how frustrated or angry you become, don’t express your emotions by destroying or stealing your partner’s possessions. This isn’t a good idea in the best of times, and it certainly looks worse when you’re navigating a separation or divorce. Try to be as civil and respectful as you can – it will make the process easier for everyone.
  2. Don’t withdraw money from joint accounts. Unless you have the explicit consent of your partner, don’t remove money from joint accounts. You can leave your existing bills on autopay, but all other expenses should ideally come from your new, separate bank account. Joint assets will be divided later in the process, so you’ll want to leave the money in place until the formal distribution occurs. 
  3. Don’t undercut the other party if joint possessions are sold. Some of our clients prefer to divide and sell joint property before getting an attorney involved. It’s a personal preference, and it can be a good option for couples who can negotiate and collaborate civilly. However, it goes without saying that any proceeds should be split equitably between both parties. Do not, under any circumstances, try to undercut your partner or divide the funds in your favor.    
  4. Don’t start a new relationship until you’re separated. Many divorces are sparked by extramarital affairs or relationships. Our advice: avoid claims of marital misconduct by waiting to see someone new until you have moved out and established a date of separation. 

What About My Kids?

As hard as divorce is on adults, it can be even more difficult for the younger members of the family – children. So naturally, our clients are often curious about what happens to the children as parents work through separation. 

The answer depends on the state of the relationship (i.e. can you get along), but we typically find that parents are able to work together to develop an informal schedule for day-to-day care. For example, you and your partner may decide to alternate weeks with the children until a more formal arrangement is put into place. 

Attorneys usually enter the equation to tackle the big stuff – things like child support obligations, holiday protocols, and expectations surrounding travel plans. Negotiating these types of issues with an attorney is helpful because an official (legal) agreement removes the uncertainty from what would otherwise be a casual understanding. With a formal agreement in place, would-be disagreements are easily settled by reviewing the terms that both parties already agreed to.  

Conclusion

The legal decisions related to separation and divorce have a major impact on your life, your family, and your future. For these important reasons, it’s essential to approach both topics with knowledge, thoughtfulness, and the guidance of a compassionate legal advocate. If you’re in need of advice, reach out to our Family Law team by calling 919-772-7000 or connecting with us through our website.

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