I am frequently asked to prepare a “legal separation.” Many prospective clients are surprised to learn that North Carolina doesn’t recognize any document or specific living arrangement as a “legal separation.” Separation is when one spouse leaves the marital residence with the intent to separate and not resume the marital relationship. Interestingly, according to our courts the intent doesn’t have to be communicated to the other spouse. A couple isn’t separated if they’re living in separate rooms in the same house, and living in separate buildings on a large tract of land may not count as a separation either.
Separating is only the first step in resolving marital issues. Prior to separating, a person considering it should consult with an experienced family law attorney. The attorney should discuss the ramifications of separating, including one’s rights and obligations as to the issues of child custody, child support, the possibility of paying or receiving alimony, and property and debt distribution. An attorney can help determine what’s right for you and best for your children.
In N.C., one must be separated for one year before a divorce action can be filed. This divorce action alone doesn’t resolve any of the aforementioned issues. A party has to file separate claims prior to or in the divorce suit to have the court resolve them. Failing to do so could cost a party the right to obtain alimony and/or equitable distribution (property settlement).
Luckily, spouses can settle all the issues surrounding the breakup of their marriage with a Separation and Property Settlement Agreement. This notarized document, hopefully prepared by an experienced attorney, spells out the terms of custody, visitation, child support, alimony (or waiver), and property settlement. The document may be signed after separation but may be executed within a short and reasonable time before physical separation takes place.
Litigation can be expensive and creates intense levels of stress and animosity. Separation Agreements are usually resolved more quickly, cost far less, and have a major advantage…the parties are in control of the resolution of affairs, not a judge who knows the parties from a two to three day long trial.
If you are considering separation, one of the first things you should do is contact an experienced family law attorney for a consultation to obtain advice on how to best handle your important and unique situation. Hopefully both spouses will want to resolve matters amicably and relatively inexpensively with a comprehensive Separation Agreement.
William G. Whittaker is a partner at Weaver, Bennett & Bland, P.A. in Matthews, North Carolina. Contact William at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice nor to establish an attorney-client relationship between the reader and William G. Whittaker or the law firm of Weaver, Bennett & Bland, P.A.
Weaver, Bennett & Bland, P.A. serves clients in North Carolina and South Carolina. Located in the town of Matthews between Mecklenburg and Union Counties in North Carolina since 1982, we proudly provide legal services throughout Charlotte, Matthews, Mint Hill, Stallings, Indian Trail, Monroe, Marvin, Wesley Chapel, Weddington, Waxhaw, and other surrounding communities in the Greater Charlotte area. Our clients range from national corporations and major banking institutions to individuals and local companies.