Legal Separation in North Carolina

In North Carolina, legal separation works somewhat differently than in most other states. You may get what's known as "divorce from bed and board," which is essentially a court-ordered legal separation. But the state might also consider you to be legally separated without any court order. Read on for details.

• Can I File for Legal Separation in North Carolina?
• Separating Before a Divorce
• Types of Separation in North Carolina
• Separation Agreements
• Why Choose Separation Instead of Divorce?

Can I File for Legal Separation in North Carolina?

In North Carolina, you may file for divorce from bed and board if you and your spouse aren't able to reach a separation agreement and you want a judge to resolve the issues that would otherwise be in an agreement (more on that below).

But in order to get a divorce from bed and board, you'll need to claim (and prove) that your spouse was guilty of one of the following types of misconduct:

• abandonment of the family
• maliciously forcing you out of the home
• cruel treatment that endangered your life
• adultery
• excessive use of alcohol or drugs that has made your life intolerable, or
• other "indignities" that have made your condition intolerable.

(N.C. Gen. Stat. § 50-7 (2023).)

Despite the confusing name, you will still be legally married to your spouse after a divorce from bed and board in North Carolina. That means that neither of you may remarry.

Separating Before a Divorce

In North Carolina, couples must live "separate and apart" for at least one year before filing for divorce. This means that they lived in in separate residences, and at least one spouse intended for the separation to be permanent. Generally, living separate and apart also means that the spouses don't have marital relations, but isolated incidents of sexual relations won't pause or restart the one-year separation period. (N.C. Gen. Stat. § 50-6 (2023); (Richardson v. Richardson, 127 S.E.2d 525 (N.C. Sup. Ct. 1962).)

At your final divorce hearing, you'll need to show that you've met this requirement. Typically, your testimony (under oath) will be enough. But if there's any question about the issue, you may present other evidence, such as your separation agreement or testimony from other witnesses.

If you get a divorce from bed and board, the one-year period will start when the court issues that judgment.

Types of Separation in North Carolina

You don't have to get a divorce from bed and board in North Carolina in order to separate. You and your spouse may separate, temporarily or permanently, without court intervention.

Trial Separation

You can separate on a trial basis if you're not sure that divorce is right for you, but you need a break from your marriage. A trial separation allows both spouses to do a "test run" of how a divorce will impact the family. It also gives each spouse time to evaluate the marriage and possibly attend therapy and/or couples counseling.

If you expect that a trial separation could last for more than a month, it's a good idea to put the terms of the separation into an informal agreement. But because North Carolina courts don't recognize trial separations, you won't be able to ask a family law judge to enforce your agreement.

Permanent Separation

At some point, you'll need to decide what next steps to take next. You and your spouse might agree to reconcile. Or you might move onto a permanent separation—either as preparation for divorce (to meet the one-year pre-divorce separation requirement) or instead of divorce.

In North Carolina, you don't need a separation agreement or a divorce from bed and board in order to be considered permanently separated. You and your spouse simply must live in separate residences (with no marital relations), and at least one of you must consider the separation to be permanent. However, you won't be able to ask the court to enforce any of the arrangements you've made for taking care of your affairs unless you have a valid agreement or a bed-and-board divorce judgment.

Separation Agreements

A separation agreement is a written contract signed (and notarized) by both spouses. Your separation agreement should include details on the the important issues in your situation, including:

• the date of your separation
• how you'll divide your property and allocate your debts
• how you'll pay bills during the separation
• post-separation spousal support (alimony), and
• if you have minor children, child custody and child support.

It's usually a good idea for both spouses to hire independent attorneys to review the agreement before signing, to make sure that you haven't overlooked something or given up your rights.

Unless you're getting a divorce from bed and board in North Carolina, there's no legal procedure for submitting your agreement to a judge to have it made part of a court order prior to an absolute divorce. That means that if your spouse violates any of its provisions, the only way to enforce the agreement would be to sue for breach of contract.

Still, a solid separation agreement can save you time and money in a future divorce by allowing you to file for an uncontested divorce in North Carolina. You may submit your separation agreement to the court as part of your divorce. The judge may then incorporate the agreement in the final divorce judgment.

If you're having trouble reaching a separation agreement with your spouse, mediation can help you find solutions that work for both of you.

Why Choose Separation Instead of Divorce?

For most North Carolina couples, a permanent separation is just a prelude to an eventual divorce. But some couples may choose legal separation instead of an absolute divorce. The most common reason is when a couple practices a religion that forbids divorce. Other possible reasons include:

• keeping the family unit together legally for the sake of the children
• health insurance coverage, or
• social security protections.

But if you're choosing legal separation because you're hoping it will allow one spouse to stay on the other's health insurance, you should check with the plan. Some insurance plans treat legal separation the same as divorce for the purpose of terminating benefits.