What is the legal effect of reconciliation?

May is National Recommitment Month. During this month, people are encouraged to take time to review the goals they set back in January and recommit to reaching them. It is also a popular time for people to renew their wedding vows and recommit to their relationships. Some separated couples may be inspired to reconcile or consider reconciliation. While those considering reconciliation (or those who perhaps already did) may not always be cognizant of the legal ramifications of their actions, the reconciliation can have an impact should they decide to separate again later.

First, what is “reconciliation” in North Carolina? Reconciliation is the resumption of the marital relationship, which is the voluntary renewal of the husband and wife relationship as shown by the totality of the circumstances. Relevant facts include whether or not the parties resumed cohabitation, the extent to which personal possessions were moved, the length of time the parties lived together after resuming cohabitation, the sharing of household chores, whether one party continued to maintain an alternative residence, appearances in public places, statements to family and friends regarding their marital status, filing joint tax returns, and intimate contact. As a “totality of the circumstances” analysis, no one factor is controlling; all relevant facts should be considered. If there is conflicting evidence, the subjective mutual intent of the parties becomes an essential element.

If a couple does reconcile and subsequently separates again, they should be aware of the following effects:

  • The reconciliation will restart the one-year period required to file for divorce.
    In North Carolina, parties must live separate and apart for one year without maintaining the appearance of a marital relationship before either party can file a complaint for absolute divorce. The period of separation on which to base an absolute divorce on one year’s separation will commence upon the re-separation of the parties.
  • Unless stated otherwise in the agreement, reconciliation can void portions or all of a separation agreement.
    Resumption of marital relations voids the executory (yet to be performed or completed) portions of a separation agreement and if the conduct of the parties substantially defeats the purpose of the agreement may even void the executed (performed or completed) provisions of that agreement. However, a provision waiving, releasing, or establishing rights and obligations to post separation support, alimony, or spousal support shall remain valid following a period of reconciliation and subsequent separation, if the agreement satisfies certain criteria. In addition, many separation agreements include a clause stating that the provisions of the agreement shall continue in full force and effect even in the event of a reconciliation and resumption of the marital relationship between the parties. If this is the case, the provisions of the separation agreement would remain in place.
  • Reconciliation may change the date at which marital assets are valued for the purposes of equitable distribution (property division).
    Marital property is valued as of the date of separation for the purposes of equitable distribution. In the case of reconciliation and subsequent separation, this date would be the re-separation date of the parties. Even if a prior separation agreement remains in effect, any property acquired by both parties together after reconciliation will be subject to equitable distribution following a subsequent separation.
  • Reconciliation may excuse certain acts of prior marital misconduct.
    Illicit sexual behavior is considered marital misconduct and a basis for either outright awarding or denying alimony. However, condonation, the conditional forgiveness of illicit sexual behavior after knowledge of the marital offense, is a bar to alimony. A spouse who has forgiven the illicit sexual behavior of the other effectively waives the opportunity to make that act the basis of an alimony claim.