Clients frequently are anxious when determining whether separation is the right move for them and their children. We’ve gathered a list of 8 facts that will answer many frequently asked questions over the years.
1) You Can Date While Separated
After you have legally separated you are free to date as if you are not married. Your spouse does not have a say in whether or who you date. Third party claims such as alienation of affection and criminal conversation cannot be filed solely due to post-separation acts. However, post-separation dating can impact you in the following ways so beware if:
- You have a separation agreement or court order that prohibits overnight guests of the opposite sex when your children are in your custody;
- You have a separation agreement or court order that prohibits introducing dating partners to your children for a specified time period;
- If you had an affair, establishing a dating relationship with your affair partner can be used to support acts that occurred prior to the date of separation in an alimony claim;
- Cohabitation (living with) your dating partner can terminate spousal support.
2) You Cannot Be Separated Living Under the Same Roof
Your period of separation does not begin if you live in the same home. Sleeping in separate bedrooms or in separate wings of a home will not count or tack on to your separation period. If you want to start the clock on getting divorced, either you or your spouse has to move out of the home.
3) What is Abandonment and Why Does it Matter
Many clients who are planning to leave the marital home first have questions about abandonment. They fear that if they leave first it will negatively impact their ownership rights in the marital home or affect their rights to spousal support. Leaving does necessarily constitute abandonment under North Carolina law, but understanding the concept of abandonment may help you make a decision about your separation.
Abandonment requires moving out of the home without your spouse’s consent, without justification and with the intent to end cohabitation. If you and your spouse agree for you to move out to effectuate a separation, it’s not abandonment. Being forced out of the home due to domestic violence, other health, and safety issues, or to maintain self-respect, does not constitute abandonment.
True abandonment could impact spousal support and property distribution during a divorce, but it is not guaranteed, in fact, it is unlikely.
4) You Don’t Need to File for Separation
If you and your spouse agree to separate or if you’re fine with leaving the marital home to effectuate a separation, there is no need to file anything. If you or your spouse move out with the intent to live separate and apart permanently, you’re separated. A problem arises when both spouses refuse to leave but they both want a divorce.
A divorce from bed and board action may need to be filed if neither spouse will leave and one or the other has committed marital misconduct. These actions are very rare so it’s usually best that you and your spouse figure out a way to work this out.
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5) You Don’t Need a Separation Agreement to Be Legally Separated
You don’t need a written agreement to effectuate a separation, although separation agreements can protect your rights and make sure the terms of a separation are clear. All that is required is moving out with the intent to live separate and apart permanently.
6) You Must Be Separated for One Year Prior to Getting Divorced
Many clients ask if there is a way to get divorced prior to living separate and apart for one year. The answer is almost always no. You can file your divorce complaint one year and one day after the date of separation.
The only exception is if you qualify for an annulment, which only applies in extremely limited circumstances.
7) If You Are the Supporting Spouse You Should Prepare to Pay Support
If you are the primary breadwinner in your home, you should prepare to pay some support. You’re very likely going to be responsible for some spousal support plus child support if you have minor children. If the dependent spouse has to seek a court order for support, the supporting spouse can be required to pay back-support (arrears) and attorney fees in support actions. While you and your spouse may not agree on the amount, payment of a manageable amount can show good faith early in the process and avoid litigation on support issues.
8) Without a Custody Order, Both Parents Have Equal Rights to Your Children at Separation
If you and your spouse have children, uncertainty regarding child custody can be a barrier to separating. If you want to move out but haven’t made preparations for how to maintain a regular overnight schedule with your children, issues with visitation can arise. Law enforcement cannot assist you in getting your children back from the other spouse, so it pays to be civil and come to some type of understanding.
If you can’t agree a child custody action will need to be filed with the Court. Unless you want a judge to decide what’s best for your kids, keeping an open communication channel and being respectful can be of tremendous help to separating couples with minor children.
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