Frequently Asked Questions – Separation
How do I file for legal separation?
There is no obligation or requirement to file anything at the courthouse when you separate. It is advisable at a minimum, to privately document (email, letter, text, etc.) the separation date so that if a dispute as to the date of separation later becomes an issue, you have something in written form to substantiate your date.
But the military says I have to file for separation!
That may be their requirement but it is not a legal requirement under North Carolina Law. Typically what the military is talking about is they want you to at least do a separation agreement as the separation and divorce will have an effect on military pay, housing, benefits, etc., not to mention being a distraction to the service-member’s job performance.
Then what is a legal separation?
In North Carolina the parties are legally separated when they meet two requirements. They reside in different residential addresses (different bedrooms in the same house does not count and lack of intimacy is not the issue) AND there is an intention by at least one party that the separation, at least in part, is for the purpose of getting divorced.
Does it have to be in writing?
No, although it is advisable to do so in most cases.
Can we backdate it to the date I went on deployment or we stopped living together?
No. The date of separation is the date that both of the conditions first coexisted; you were living separate and apart AND it was with the intent to end the marriage. Living apart by itself is only part of the requirement. A Marine deploys on ship and everything is normal for the first 4 months until he receives a “Dear John. . .” letter or email. The couple was physically separated for 4 months but only just legally separated upon receipt of the letter when the intent was expressed.
If we decide to separate, then what?
Basically you have three options: First you can just physically separate and go your separate way and do your own thing. As problems come up you just work it out. This may work for very short marriages that really have nothing to split up but it does not really settle anything. Second you can do a Separation Agreement and negotiate a settlement with your spouse. It is your agreement and the attorney is there primarily to advise you and draft the document to make it legally enforceable if someone changes their mind. Third, if an agreement is not possible, then filing a lawsuit is the only way to get a resolution to your problems and a Judge will make the final decision. It is not necessary to wait for the absolute divorce to file this law suit. Typically in contested cases the Court is dealing with the separation issues while the parties are waiting for the one year period to run.
Do I have to have an attorney?
The law does not require that you have legal counsel although it is advisable. A separation agreement is a legal contract and unless you speak the language of the legal system, what you think the agreement you drafted says may not be how the court interprets it. If your case is in court, you can represent yourself but the Court will expect you to know how to represent yourself to the standards and procedures that attorneys are expected to comply with. Remember that the Judge is there to decide the case based on the evidence presented; not teach you what is and is not evidence.