Your marriage has been effectively over for months, and your spouse has moved into the spare bedroom. You both have begun independent lives, and your finances are kept apart.
Unfortunately, if you and your spouse are still living under the same roof, the one-year separation period required before a North Carolina divorce can be granted hasn’t yet started.
What living separate and apart generally means
The law mandates living “separate and apart” for that one-year period. You do not need your spouse’s consent, a written agreement or a court order for your official period of separation to start. The clock starts ticking when you and your spouse begin living in different homes and at least one of you intends the separation to be permanent – not when you and your spouse decide divorce is the plan, no matter what other steps you take to divide your lives.
In addition, any genuine attempt to reconcile can set things back and send the clock back to the starting line. It’s important to note, however, that one isolated or even several occasional instances of sexual intercourse aren’t enough to demonstrate that the marital relationship resumed. Instead, if there are questions about when the separation period began, the court will look at the totality of the circumstances to determine if the marital relationship resumed for a time. If a brief period of reconciliation did occur, the date separation began will change.
Why the separation date matters
The official starting point of your separation matters because it can affect when you can actually file for and obtain a divorce. It can also determine which assets and debts will be considered part of the marital estate and even how some property may be valued (particularly if there are market fluctuations).
To keep your divorce on track, one of you must move out of the family home. Make sure that you retain clear records, such as a copy of the new lease, change of address forms and any communications with your spouse about the living situation that may be relevant. If your spouse later disputes the separation date, those documents could become invaluable. For more information, speaking with an experienced family law attorney can help.