Separation in North Carolina occurs on the date that a husband and wife move into separate residences with at least one of them having the intent to continue living separate and apart. Often, just prior to or during separation, people consult with attorneys about the separation process and they frequently hire attorneys to draft their Separation Agreement and Property Settlement papers. Within these separation agreements people often outline how their property will be divided, how much, if any alimony will be paid, how child custody will be arranged, and what amount of child support will be paid. A separation agreement can contain any one or all of the issues. The only issue pertaining to the end of a marriage that cannot be contained in a separation agreement is the divorce itself. The divorce can be obtained after one year and one day of separation in North Carolina.
A common question is the following: is it is ok for one of the spouses to leave the marital residence? Many clients are worried about leaving because it might be perceived as abandonment. The legal claim for which abandonment could become a key issue in North Carolina is alimony. Abandonment is fault or marital misconduct, so it could potentially affect your alimony claim.
The law says that spouses are presumed to have an equal right to resources earned or acquired during the marriage. Thus, if there is a marital bank account which one spouse controls, the other spouse is still generally entitled to half of the money in that account. In other words, a financially dependent spouse should explore all options when trying to gather the resources to move out of the house.
Separation Agreements are papers, which once signed by both parties involved, are binding contracts. It generally resolves all issues relating to child custody, child support, division of property, and alimony. A separation agreement must be in writing, signed by both parties, and notarized. It is always in your best interests to meet with an attorney to discuss your rights and to make sure that you understand the separation papers before signing them.
Divorce From Bed and Board
Divorce from bed and board is, essentially, a judicially-sanctioned separation. In order for a spouse to prevail in a divorce from bed and board action, he or she must establish that the other spouse has committed one of the following fault grounds: 1. Abandonment. ( i.e. willfully leaving the marriage without just cause and without the consent of the other spouse) 2. Maliciously turning the other spouse out of doors. 3. Cruel or barbarous treatment that endangers the life of the other. 4. Indignities that render the other spouse’s condition intolerable and life burdensome. 5. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome. 6. Adultery. If the court finds that at least one of these factors exists and that the marriage has deteriorated so badly that the only remedy is to force one spouse to leave, it will do so by granting a divorce from bed and board. It is very important to note, though, that forcing a spouse to leave the marital home is quite drastic and courts are reluctant to do so unless the evidence strongly supports that course of action.