Legal Separation and Separation Agreements in North Carolina

In North Carolina, legal separation works differently than in most other states. You can get a "divorce from bed and board," which is essentially a court-ordered legal separation. But you can also be considered legally separated without a court order, which is necessary to meet the requirements to file for divorce. And while you're separated, you can get court orders for spousal support (alimony), child custody and support, and property distribution.

Can You Be Legally Separated in North Carolina Without Filing for Legal Separation?

There are different kinds of separation in North Carolina: trial separation, permanent separation, and divorce from bed and board (similar to legal separation in other states). As explained below, you may be considered legally separated in North Carolina as long as you meet the state's requirements for a permanent separation—even if you don't file for divorce from bed and board.

Trial Separation

Couples who are having difficulties in their marriage often separate as a trial or "test run" for how divorce will affect the family. Or maybe the spouses simply need a break from living together. But as long as they consider the situation to be temporary—or they simply aren't sure whether their marriage will survive—nothing changes in terms of their legal rights and responsibilities as a married couple.

You always have the option of reaching an informal agreement about your expectations while you're separated. But North Carolina law doesn't legally recognize trial separations, so you wouldn't be able to enforce the agreement in family court unless you meet the requirements for a permanent separation.

Permanent Separation

North Carolina law recognizes a type of permanent separation that doesn't require filing any paperwork or getting an order from the court. This is important because of the state's requirement that spouses must live "separate and apart" for one year before they may file for divorce in North Carolina.

Couples are considered to be living separate and apart when:

• they're living in separate residences
• they don't have "marital relations," and
• at least one spouse considers the separation to be permanent.

"Marital relations" includes the overall relationship of spouses, not just sexual relations. The fact that a separated couple had isolated sexual encounters won't necessarily mean they've resumed their marriage relationship or paused their separation. (N.C. Gen. Stats. §§ 50-6, 52-10.2 (2024); Richardson v. Richardson, 127 S.E.2d 525 (N.C. 1962).)

When couples meet these requirements for a permanent separation, North Carolina courts often refer to them as being "legally separated" even if they haven't gone through any court procedure. In this context, being legally separated is not the same as what many other states call "legal separation." Still, North Carolinians who are legally separated may request court orders to deal with their finances and children, and they may have their separation agreements recognized in court (more on those issues below).

Divorce From Bed and Board

North Carolina also has a legal procedure known as "divorce from bed and board." Despite the confusing (and antiquated) name, it's similar to what's known as legal separation in several other states.

The legal process is somewhat similar to a divorce in North Carolina (which is known as "absolute divorce" in the state's laws), but there are two important differences:

• the legal reasons ("grounds") for divorce from bed and board are different than divorce (more on that below), and
• after you get a divorce from bed and board, you and your spouse will still be legally married—so you won't be able to marry anyone else.

These days, few couples choose to get a divorce from bed and board. If they aren't prepared to get divorced, it's much easier to settle their affairs with a separation agreement—and even if they can't agree, North Carolina allows spouses to seek court orders while they're permanently separated (more below on those issues).

How to File for Legal Separation

To file for a divorce from bed and board in North Carolina, you must file a complaint in which you claim 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, or
• excessive use of alcohol or drugs—or other "indignities"—that made your life intolerable.

(N.C. Gen. Stat. § 50-7 (2024).)

Unlike a divorce from bed and board, you don't need to file any paperwork in court to be considered legally separated in North Carolina. You simply need to meet the requirements for living "separate and apart" (discussed above).

Separation Agreements

A separation agreement is a written contract between you and your spouse that details how you'll handle your financial and other family matters while you're separated, including:

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

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

Enforcing Separation Agreements

You don't need to submit your separation agreement to the court. If one of you violates any of the provisions in the agreement, you may seek to enforce it like any other contract, as long as it meets the requirements for a valid, legally binding contract—including that you both signed it in front of a notary, without any coercion, fraud, or misrepresentation.

However, you may choose to submit your separation agreement to the family court so that a judge can make it part of an official court order. That way, you could seek to enforce the agreement in family court (usually by asking a judge to find your spouse in contempt of court).

How Does a Separation Agreement Affect Your Divorce?

When you're ready and qualified to start the divorce process, you can attach your separation agreement to your "complaint for absolute divorce." Or, if the two of you agree on any changes to the agreement, you could attach the new agreement. Either way, having an agreement at the outset of the divorce process will allow you to take advantage of the time- and cost-saving benefits of uncontested divorce in North Carolina.

Once a judge reviews and approves your agreement, it will become part of your final divorce judgment.

What If You Get Back Together After Signing a Separation Agreement?

If you and your spouse sign a separation agreement but later get back together—even for a short while—all or part of your agreement may no longer be valid. That means if the reconciliation doesn't work and you separate again, you'll need to sign a new agreement.

However, a reconciliation won't invalidate any parts of the agreement that have already been completed—such as a transfer of ownership in property. (Case v. Case, 325 S.E.2d 661 (N.C. Ct. App. 1985).)

A judge won't consider that you've reconciled just because you and your spouse have slept together once or twice while you're separated. If there's a dispute about whether you broke the separation, the judge will look at the overall picture, including a resumption of prolonged intimate relations, regularly sleeping in the same residence, or resuming normal marriage responsibilities like household chores.

When Your Spouse Won't Sign a Separation Agreement: Support, Custody, and Property Division

Once you and your spouse are considered legally separated in North Carolina, you may request court orders addressing important issues affecting your finances and family. Unlike most other states, you don't need to file for a legal separation (divorce from bed and board) in North Carolina to request spousal support or property division before starting the divorce process.

Postseparation Support: Alimony Before Divorce

Either spouse can file an independent complaint or motion to request support from the other spouse during their separation. As a general rule, the judge will grant postseparation support when the dependent spouse doesn't have enough resources to meet their reasonable needs and the other spouse can pay the support. However, North Carolina law spells out several factors that judges must consider when they're deciding whether to order postseparation support, including either spouse's abandonment (more on that below). (N.C. Gen. Stat. §§ 50-19, 50-16.2A (2024).)

As with post-divorce alimony, either spouse may ask the judge to modify postseparation support if there's been a substantial change of circumstances that affects the supported spouse's needs or the other spouse's ability to pay. (N.C. Gen. Stat. § 50-16.9 (2024).)

(Learn all about alimony in North Carolina, including the considerations that go into decisions on postseparation support.)

Child Custody and Support During Separation

If you and your spouse have minor children, you may also ask a judge to issue orders dealing with child custody and child support during your separation. When deciding on your requests, the judge will apply the same criteria that apply to custody and child support decisions during divorce in North Carolina.

Who Has to Leave the House During Separation and Who Stays?

Any time after you and your spouse meet the requirements for living separate and apart (discussed above), either one of you may request an equitable distribution of your marital property and debts. You'll need to file a claim, serve your spouse with the paperwork, and then prepare and serve an affidavit that lists all of your marital and separate property, along with the fair market value as of the separation date. (N.C. Gen. Stat. § 50-21 (2024).)

If you want to stay in the family home but your spouse refuses to leave, your options may be limited:

• You might have to move out and then request possession of the family home as part of your claim for property distribution during your separation—for instance, along with a request for primary custody of your children.
• You could request possession of the home as part of a divorce from bed and board (if you can meet the requirements discussed above). But that would mean going through an extra legal proceeding that could take a long time.
• If your spouse has subjected you to domestic violence, you may request a domestic violence protective order. Among other things, the order could grant you possession of your shared residence and force your spouse to leave and stay away. (N.C. Gen. Stat. §§ 50B-1, 50B-2, 50B-3 (2024).)

What Are Your Rights If You Leave the Family Home?

It can be difficult to decide whether to leave the family home when you're splitting up. If you're worried about coming up with the money to rent an apartment, you have the right to use your share of the marital assets. Be aware, however, that if you withdraw money from a joint bank account for your postseparation expenses, that will likely affect your share of marital assets when your property is later divided.

When you and your spouse own a home together, moving out doesn't mean you'll lose your marital interest in the property. As discussed above, you may ask the court for a fair distribution of your marital property during the separation. Among other options, the judge might require you to sell the house and divide the proceeds—or one of you may keep the property while the other receives other assets that are worth enough to make the overall property distribution fair.

If you're worried that moving out without your children could hurt your chances of getting primary or shared custody, do everything you can to continue playing an active role in their lives—including asking a judge to order a shared parenting schedule if your spouse won't agree to that.

Can Your Spouse Come Back After Leaving the Family Home?

Once you're living separately, you may refuse to let your spouse in the residence where you're living—whether that's the family home you previously shared or another place—unless a court order or separation agreement gives your spouse the right to enter the home in order to visit with a child. Otherwise, "out-spouses" who try to enter or stay after being told to leave could be charged with "domestic criminal trespass" in North Carolina.

The crime is normally a misdemeanor, but it becomes a felony if your spouse is armed with a deadly weapon at the time or you're living in a domestic violence shelter.

(N.C. Gen. Stat. § 14-134.3 (2024).)

Resources and Help With Separation

You don't need a lawyer to be considered legally separated in North Carolina, as long as you meet the requirements discussed above. If you're having trouble agreeing on the issues in your separation, mediation could help. Just as with divorce mediation, a neutral, trained mediator could help you resolve your disputes and come up with solutions that work for both of you.

If you or your spouse files a claim for custody because you haven't agreed on your parenting arrangements during the separation, the court will refer your case to mediation with the North Carolina Child Custody and Visitation Mediation Program, as long as it's available in your county. (N.C. Gen. Stat. § 50-13.1 (2024).)

If you still can't reach a separation agreement—or if you're considering filing for a divorce from bed and board—you should strongly consider speaking with a lawyer. An experienced, local family law attorney can explain your options and guide you through the legal procedures needed to get the court orders you may need.