To be legally separated in North Carolina, a couple must be living separate and apart and at least one of the parties must intend for that the separation be permanent. A married couple cannot live in the same residence and be separated even if the parties are not sharing a bedroom. At least one spouse must move out of the marital residence in order to be separated.
In North Carolina, spouses must be separated for at least one year prior to filing for divorce. It is common for married couples to agree on getting a divorce prior to being separated for one year. Some people even file for a divorce prior to being separating at all. I do not recommend this. Sure, at this time both spouses might be in agreement but that doesn’t mean they will always agree. One spouse must file for the divorce by filing what is called a “Complaint for Divorce”. The Plaintiff spouse files the divorce complaint and states under oath that the parties have been separated for at least one year. The defendant spouse doesn’t respond to the complaint and the judge enters the divorce judgment. The plaintiff spouse thinks everything is good and he or she can move on with his or her life. But should the plaintiff spouse be worried?
Consider a case heard recently in the North Carolina courts:
Husband wanted to divorce his wife. There was no love in the marriage and both he and his wife wanted the divorce. They had a child together, and they were both involved in raising her. The husband and his wife could not afford to live in separate homes, and they both wanted to live in the home for their daughter. They resided in separate bedrooms, and they really did not have much interaction with each other. Husband filed for the divorce, swearing under oath that they had been separated for one year. His wife was served with the divorce complaint, and she did not respond to the complaint. A few months later, a judge entered a judgment of divorce. Husband purchased a home, and he, his wife, and their daughter moved into the new home. Husband’s wife paid rent to him. Two years later, the husband and his wife got into an argument. Husband’s wife moved out of the home. His wife consulted with an attorney who told her the divorce was not valid because they had not been separated for one year prior to the complaint for divorce being filed. Wife’s attorney filed a motion to have the divorce judgment overturned. The judge found that because husband lied to the court stating that he and his wife were separated for one year when in fact they were living together, the divorce was void; the husband and his wife were in fact still married. Husband’s wife then sued husband for equitable distribution and alimony – claims that would have been barred had they been divorced. The husband had to split the value of his house and his 401k with his wife, and he also had to pay his wife alimony based on his salary at the time his wife actually moved out of the home. The husband would have saved a tremendous amount of money both in attorneys fees and in what he paid to his wife had he separated from his wife one year prior to filing for divorce.
Although you might want to move on with your life as quickly as possible, it is not advisable to lie to the court in order to get a divorce prior to being separated for one year. The possible consequences for getting a divorce prior to one year separation far outweigh any benefit that could come from getting a divorce entered early.
For more information about separation and divorce, contact our office today to schedule a consultation.