The most significant difference between divorce and legal separation is that a divorce terminates your marriage while a legal separation does not. The divorce and legal separation processes are similar in that the court (or couple) must resolve all marriage-related issues, such as property division, allocation of marital debt, child custody, child support, and spousal support.
When the court hands you the final judgment of divorce, you and your spouse are free to move on with other relationships, including remarriage. In a legal separation, the judge will issue a final judgment outlining the decisions for each issue, but neither spouse can remarry unless you file for a formal divorce.
North Carolina law doesn't permit legal separation. Couples who wish to end their marriage in the Tar Heel State must file a petition for an absolute (no-fault) divorce (after one year of separation) or file for a divorce from bed and board (fault divorce) using one of the state's legal grounds for divorce. (N.C. Gen. Stat. § 50-7.)
However, if you live in a state that permits legal separation, the legal process is often similar to the divorce process. In most cases, the filing spouse will submit a formal petition to the court asking for a legal separation. Next, you will serve the paperwork on your spouse. If both spouses agree to all the terms of the separation agreement, you can present it to the court for approval. However, if either spouse contests any portion of the petition or settlement agreement, you'll need to ask the judge to decide for you (or attend mediation to resolve it yourselves.) Once you agree, the judge will finalize your legal separation.
It's no surprise that when a couple decides to file for divorce, living together may seem impossible. But moving out before or during divorce proceedings could impact your claim on marital property or custody of your children. Some couples may not be able to afford a second residence during a divorce, and therefore, they must continue to share the marital home, even if they are separated and living only as roomates.
On the other hand, some states require you to live separate and apart for a period of time, either after you file for divorce or before you can file. Each state has its own definition of "separate and apart," so it's important to speak with an attorney in your state, so you understand the requirements.
In North Carolina, couples must live separate and apart for at least one year before filing for divorce, which means living in separate residences. If you fail to meet this requirement, the court will not accept your divorce filing. In most situations, you won't need to "prove" your separation, and the court will accept your testimony under oath. (N.C. Gen. Stat. § 50-6.)
Even though the courts in North Carolina don't recognize legal separations, that doesn't mean you and your spouse can't agree to separate without court intervention.
If you're not sure that divorce is right for you, but you need a break from your marriage, you can agree to a trial separation. A trial separation is beneficial because it 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 a trial separation is going to go on for more than a month, it's a good idea to put the terms of the separation into an informal agreement, which both spouses should abide by. Because North Carolina courts don't recognize trial separations, you can't ask a judge to enforce your agreement.
When the term of your trial separation ends, you'll need to decide what steps to take next. Either you and your spouse will agree to reconcile, file for divorce, or you can discuss a permanent separation. In a permanent separation, both spouses can agree to create a separation agreement, which outlines all the permanent separation terms and is legally binding. A separation agreement in North Carolina is only valid if both spouses sign it and present it to the court.
A separation agreement is a legally-binding, written contract signed by both spouses. It's beneficial for both spouses to hire independent attorneys to review the agreement before signing. The attorney will ensure that the contract meets the state's requirements and that the terms are in your best interest.
Your separation agreement should include details on the following topics (if applicable):
You can present your agreement to the court, and the judge will sign it, making it legally binding on both spouses. If either spouse fails to follow the agreement, the other can ask for help from the court to enforce it later.
Separation agreements are necessary when a couple decides to separate but can also be helpful when a couple chooses to divorce. Couples who communicate and work out essential divorce-related issues without the court's help often save significant time and money during the divorce process. Once you present the agreement to the court, the judge can incorporate your final agreement into the divorce judgment.
There are many valid reasons couples decide to pursue a legal separation instead of a divorce. The most common reason is when a couple practices a religion that forbids divorce. A legal separation offers the spouses relief from the marriage without violating their beliefs. Some couples choose legal separation because they aren't ready to take the leap into a divorce's permanency. If the couple chooses to reconcile while legally separated, they can ask the court to terminate the separation, after which they can resume their marriage.
Other reasons couples choose legal separation include: