How Do I Become Legally Separated in North Carolina?
A lot of people contact my office asking to file papers to become legally separated. There is a big difference between being legally separated and having a separation agreement, which is sometimes filed with the register of deeds, and I think this is an area of confusion for many people. In North Carolina, you are legally separated when you and your spouse are no longer living together and at least one of you has the intent to remain permanently living apart. So if your husband or wife has moved out of the marital home with the intent to remain permanently gone, then you are legally separated. You do not need to file any paperwork in order to become legally separated in North Carolina.
A separation agreement on the other hand is a document between two people (spouses) that settles many of the details of their future divorce. This can include things such as property division, child custody and possible alimony payments. You do not have to have a separation agreement to be legally separated. Often people are confused because many attorneys (including myself) suggest trying to work out a settlement agreement before one party moves out of the marital home. This is mainly because it tends to be easier, faster, and less complicated for both parties if all of these issues are decided before the couple separates. When one person moves out of the house, but wants to be the one to live in the house in the future things can get complicated. Also, after couples separate bank accounts are closed, money is moved and things take a lot longer to trace and divide. Couples also tend to be on better terms when they are still able to live together compared to when they are living apart. Often one party has started dating someone else and the other spouse is less cooperative.
A filed separation agreement can also be useful if you think your spouse may try to sell the marital home while the two of you are separated. By filing a separation agreement with the register of deeds you are putting possible buyers on notice that there are two people with an interest in this house that are currently going through a divorce. Most buyers don’t want to buy a house where another party (you) have an interest. Whatever the case, there are many reasons to try to create a separation agreement before or shortly after the parties cease living together, but it is not required to be legally separated.
In summary, to be legally separated in North Carolina you do not have to file or sign any type of paperwork. You simply stop living under the same roof. Living in different rooms in the same house does not count as being legally separated. You also do not have to sign and file a separation agreement, although it is usually a good idea.
If you are going through, or expecting to go through, a divorce anytime soon or need assistance with a separation agreement, please contact our office to set up a low-cost consultation to discuss your case. You can contact us at 980-225-1832 or Info@DuncanLarsonLaw.com.
