It may come as a surprise to some to learn that, in North Carolina, being “legally separated” from your spouse is relatively easy. Proving you are legally separated is another matter entirely.
To be “legally separated” in North Carolina, all that is necessary is that you and your spouse live “separate and apart” with the intent on the part of at least one of the spouses to continue to live separate and apart in perpetuity and not resume the marital relationship. Living “separate and apart” means, generally, living in two different residences (sleeping in separate rooms or beds is not generally sufficient) and holding yourself out to the world as being separated.
Before either spouse can file for an absolute divorce in North Carolina, the filing spouse must be legally separated for at least a year. Filing a verified (by a notary) complaint for absolute divorce alleging that you have been legally separated for the requisite amount of time is sufficient to prove you are legally separated if the opposing spouse is not contesting the date of separation. Otherwise, having an executed separation agreement or filing an action for divorce from bed and board may be necessary to prove that you are legally separated.
SEPARATION AGREEMENTS: THEIR MANY USES
If you don’t need a separation agreement to be legally separated, or even to get a divorce, then why bother to execute a separation agreement at all? The long and short answer is: because separation agreements are an incredibly useful and cost-effective means of simplifying the whole divorce process.
PROVING THE DATE OF SEPARATION
While it is perhaps the first and least of what it can do for you, it is nonetheless important to begin: a separation agreement can be used as evidence to establish exactly when the legal separation started. For purposes of determining when either spouse can file for absolute divorce, this is incredibly important for the reasons already stated above. A good separation agreement can likewise spell out that any separation of the parties was mutual and voluntary and that both parties are “estopped” (that is, precluded from) claiming the separation was anything but mutual and voluntary. It can stipulate that both parties will agree to wait the required time to initiate a nice and tidy action for absolute divorce rather than trying to initiate any messy action for divorce from bed and board—a legal action which is by nature more contentious because it requires allegations and proof of marital misconduct to be brought against the offending spouse and which is more or less only useful if one of the spouses is seeking an equitable distribution of the marital property and debt and the time required before the spouse can file for divorce has not yet elapsed.
DATING AFTER SEPARATION
Secondly, and depending on your circumstances, perhaps just as important, proving legal separation is important for re-entry into the dating scene. Let’s say you start dating someone right after you are legally separated. A suspicious spouse may suspect you were actually dating (and engaging in sexual relations with) this new love interest prior to the date of separation. The suspicious spouse may try to use acts of post-separation sexual relations to prove pre-separation marital misconduct. If, as part of the divorce action, the dependent spouse (the spouse who needs money to support him or herself) asks the supporting spouse (the spouse who generally provided for the family, financially speaking, during the marriage) for alimony, and the supporting spouse can prove that the dependent spouse engaged in “illicit sexual behavior” with the “new” romantic interest prior to the date of separation, then the claim for alimony may be barred. A separation agreement that spells out exactly when a couple separated can let the dependent spouse know when it is “safe” to start dating. That said, engaging in sexual relations with another person while you are still married is still, legally speaking, adultery, and still technically a crime in North Carolina, even if an unprosecuted one.
The above also matters because North Carolina is one of those states that has preserved “heart balm” torts, specifically, Alienation of Affection and Criminal Conversation. The aforementioned are suits that the suing spouse can bring against the new romantic interest for, effectively, romantic actions that occurred prior to the date of separation which “alienated” or “seriously diminished or destroyed” the marital relationship between the spouses. While no acts occurring after the date of separation can give rise to actions for alienation of affection or criminal conversation (the latter being a legal euphemism for adultery or fornication which occurs prior to the date of separation), post-separation acts can be used to corroborate acts which occurred prior to the date of separation.
A benefit of a well-drafted separation agreement is that the separation agreement can include a provision wherein your spouse agrees not to interfere with your new love life going forward and further agrees not to bring any “heart-balm” related legal actions against any romantic interest you may have.
EVERYTHING BUT THE DIVORCE
Perhaps the best reason to execute a separation agreement is its capacity to address and settle nearly all the issues related to divorce in one fell swoop. Alimony, Post-Separation Support, Child Custody and Support, Division of Marital Property and Debt. All of these issues can be settled via a separation agreement and all can be done without further judicial involvement and bureaucratic oversight. Except for the divorce itself, almost any and every issue related to the divorce can be settled via a properly executed separation agreement without all the emotional (and financial) wear-and-tear that is the litigation process. Litigation is inherently a more costly option: there are attorney’s fees, court and filing fees, and mandatory responses to intrusive and potentially embarrassing discovery requests. With a separation agreement, you don’t have to put your fate (or the fate of your property or children) in the hands of a judge who may not see things the way you see them.
What’s more, because you’re dealing with everything all at once, as it were, and on your own timetable, you can trade across the board. Does your spouse really want X in the property settlement? Then maybe he agrees to give you Y time with the kids. If you go to court on these issues, they will be heard and litigated separately on the court’s schedule and again you’ll be depending on the judge to interpret the evidence in your favor with the limited knowledge and evidence you and your lawyer can give him or her in the space of a single hearing. With a separation agreement, you and your spouse control the timetable, the negotiation process, and ultimately, the results. And you do so while minimizing the emotional and financial toll—a separation agreement (because it is and requires agreement, a meeting of the minds of both parties) implies and requires a more business-like arms-length negotiation process wherein both sides work together to try to find a compromise that each can live with. A lawsuit is by definition an adversarial process, an us versus them scenario where both sides are metaphorically slugging it out to see who can “win” on any individual issue. Both parties’ control over the process is lost, ceded over to the courts, and both sides lose emotionally by having to engage in the process in the first place.
SEPARATION AGREEMENTS: THE BEST “EVERYTHING BUT THE DIVORCE” MONEY CAN BUY
In short, if you want to save yourself some money, time, and heartache, and if you believe you and your hopefully-soon-to-be-ex-spouse can act reasonably in your own best interests, it is almost always preferable to try to come to terms via a separation agreement rather than through the litigation process.
If such is not possible however, well then, there’s always litigation.