Most people in North Carolina know or have heard that in order to get a divorce in North Carolina you must be separated for at least a year. However, some confusion arises over when the one-year time period begins. Our attorneys are often asked, “When am I legally separated?”
When does the “separation clock” begin to roll in North Carolina? According to the North Carolina General Statute §50-6 and the subsequent case law, there are three requirements the parties must meet before either may file for a divorce.
(1) Residency
The first requirement is that either spouse must have lived in North Carolina for at least six (6) months prior to filing for divorce. This is a preliminary requirement that has to do with the North Carolina court having jurisdiction (i.e. that North Carolina is the correct place to bring the action, instead of another state.)
(2) Physical Separation
The second requirement is that the husband and wife must be physically separated for one year prior to filing of the complaint.
(3) Intent
The third, which works closely with the second, is that at least one of the two people must be able to truthfully testify that it was the intent of one party not to resume the marital relationship.
The last two requirements often raise questions from clients. For most, the “date of separation” is when one of the parties moves out of the marital residence with no intent to return. However, for others, this question is not as easy. “The parties must be physically separated with the intent, of at least one, not to resume the marital relationship,” is a seemingly straightforward requirement, but as many have discovered, love and relationships tend to present a gray area with the definition of “resuming the marital relationship.”
The statute provides, “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.” But if sleeping once or twice with your former spouse does not “stop the clock,” then what does? In answering this question, a court will look to see if the parties are “holding themselves out” as husband and wife, which could include several factors. For instance, the length of time the parties are separated, whether they live in different residences, and being together in public places are all possible factors a court could take into consideration. If the court finds that the couple is holding themselves out as husband and wife, then the one year period would most likely start again.
Overall, whether you are thinking about getting married or already planning to leave, it is important to know the law and be aware of how the actions you take today could affect your claim for a divorce in the future.
By: Cathy Hunt - North Carolina Divorce Lawyer
Entries (RSS)