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Divorce is not as simple as moving out and filing at the local courthouse. Many states have established a “waiting period”, because the courts believe that it is important to protect the sanctity of marriage. North Carolina requires couples to be separated for a year prior to being able to file for divorce.
In North Carolina, a couple is legally separated once both parties are no longer living together, and someone intends to no longer continue the relationship. Often, couples says they no longer want to be together, but if someone packs all of their backs and does not have the intention of returning, it is not required that they communicate that it is over. In North Carolina, if you live in the same house, even if sleeping in different rooms and it is communicated that the marriage is ending, you are not separated. North Carolina requires that you physically not reside in the same home.
Couples have numerous issues such as dividing real property, debt, child custody, and more have to be decided. Hearings can be set months apart, mediation can be expensive, and there has already been a year wait. After a year-long separation, most people are ready at this point to move on with their own life. So, why not resolve all of the issues during the year waiting period? The best way to ensure all potential issues resolved before actually filing for divorce, and speed up the divorce process, is by getting a separation agreement.
A separation agreement is a written document that outlines how a couple intends to divide assets including, but not limited to, cars, realty property such as homes and time shares, debt, and even custody and child support. Now, understand that a separation agreement requires that both parties be willing to negotiate and come to an agreement. There are some couples who will never be able to do this, or the situation is excessively complex, that it requires a judge to make these decisions.
It is important that a separation agreement be very thorough and worded with legal precision. This is a legal binding contract and needs to define exactly how matters will be handled. If there is a marital home, the separation agreement should outline who can reside in the home during the separation, who is responsible for the payments, when the home will be listed for sale, how costs with the sale will be handled, and how proceeds from the sale of the home will be divided. If there are children from the marriage, custody and child support should be spelled out in the same manner; who gets what holidays, visitation schedules, who has primary legal and physical custody, and how much and how often child support.
Two questions I often hear from clients is “How does the separation agreement sped up the process?” and “What happens if my spouse and I engage in sex after we have separated?” The first question is easy to answer. A separation agreement is attached to the divorce complaint and request the court incorporate into divorce judgement. Once the Court does this, the separation agreement becomes the divorce order.
The second question is more complicated. A one-time sexual encounter does not nullify a separation agreement or restart your separation period. When multiple encounters occur, over-night stays are happening, or the two are taking trips together, this can make it far harder to determine and the court uses a totality of the circumstances view to decide if reconciliation occurred or not. Two major factors the court looks at if there was a mutual intent to reestablish the relationship and if the couple held themselves out as still together.