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Separation in North Carolina

Under North Carolina law, most couples who choose to divorce must live separately for a year before they may file the petition for divorce. This separation gives the couple time to decide if they want to reconcile and, if not, time to separate their lives and make arrangements around custody of any children.

What is a Separation Agreement?

While the parties do not need a formal separation agreement, it can be very helpful to have one to clarify in writing each person’s rights and responsibilities. The agreement can be especially important when children are involved. In most cases, the agreement is kept between the two parties and not filed with the court, though it can be used as an exhibit if either party fails to keep up their end of the bargain. Even in cases where the divorce discussion is amicable, we recommend each person hire an attorney to represent their interests and review the agreement.

Here are some things to consider when working out a separation agreement:

  • Living Arrangements: Will one person remain in the marital home? Will the house be sold or will one party “buy out” the interest of the other?
  • Finances: Maintaining two households is more expensive. If one person earns significantly more money than the other, the higher wage earner may need to pay post-separation support and/or alimony to help with living expenses. It should be understood who is responsible for which bills including cell phone, credit card, car, home bills, and mortgage payments. Should you fall behind on payments, the credit of both parties may be negatively affected.
  • Health Insurance: Health policies may need to be reviewed to ensure continuous coverage for everyone in the family. If one spouse is carried on the other’s employer’s policy, that person will be eligible for COBRA coverage for a period of three years after the divorce is final, paying the non-employee premium. It may be cheaper or more beneficial to the spouses to carry their own health insurance plans after the divorce. If there are children involved, it needs to be understood who is covering the children on their plans.
  • Wills and Beneficiaries: In most cases, once couples have separated, they no longer wish the soon-to-be-ex spouse to be the beneficiary of their assets. It is a good idea to talk with an attorney about revising your estate plans. You may also wish to name different beneficiaries on any bank accounts, retirement accounts, or life insurance policies. Note that in North Carolina, if you are legally married and choose to name a beneficiary other than your spouse, they must consent to this change. Should they refuse, you should speak to an attorney.
  • Property Division: Items purchased during the marriage (“marital property”) must be divided equitably or sold with the proceeds divided equitably. Unfortunately, there can be more disagreements over personal property than money, especially if items have sentimental value. In North Carolina, in most cases the property you bring with you to the marriage or property you alone have inherited remains yours. The caveat here is that any increase in value to these items (usually expensive art, antiques, or jewelry) could be claimed as marital property. That is an entirely different discussion that impacts very few people!
  • Spousal Support: Depending on financial circumstances, one spouse may be entitled to post-separation support through the period of separation. Once the divorce is final, the party MAY be entitled to alimony.

Child Custody & Support

When considering custody, the court takes into account the best interests of the child. Ideally, the parents should strive to make the separation and divorce as stress-free as possible for their children. Having one agreement during the separation and another after the divorce can be more stressful. It is often better to work out custody and support up front and maintain that arrangement throughout.

Occasionally, both parties are able to come to an amicable agreement on where the children will live, how often each parent will see them, who will make primary care decisions (education, medical, etc.), and what child support will be paid, they can put this agreement in writing. Because children are involved, we do recommend each party have a family law attorney review the agreement. Unfortunately, in many cases there is disagreement over custody and/or support. When this happens, each party should have a family law attorney help to develop an agreement in the best interests of the children.

Taking the Next Step

Once you have decided on separation or divorce, our experienced family law attorneys can offer insightful guidance, help you understand your specific legal options, and ensure your rights are protected during this sensitive time. As always, separation and divorce can be complex. Contact the firm today to schedule an appointment.