The short answer to this question is simply, no. Many people come in to my office and tell me that they need to “file” for separation. In North Carolina, separation is important because spouses must be separated for one year prior to filing for divorce. So, let’s start with how we define a separation.
A separation in North Carolina is when spouses live separate and apart for at least one year, and at least one spouse intends for the separation to be permanent. Many people want to know if they must actually live under separate roofs, or if living in separate bedrooms is sufficient to toll the separation period. In the great majority of cases, the courts require that spouses actually live under separate roofs in order to begin the period of separation. The exceptions to this rule are few and far between, and you should consult with an attorney if you want to know if your situation fits into an exception to this rule.
Once parties begin living separate from each other, there is no need to file anything in order to establish the separation. However, if you believe that the date of separation may be in question or that the other spouse may dispute the date of separation, it is important to document your separation. This can be done by producing a copy of your new lease or the closing documents on a new home, or by showing new utility bills in your name at a separate residence, or through written communication with your spouse regarding yours or their move from the marital residence. Another option to document the date of separation is to execute a separation agreement. However, executing a separation agreement most often involves the negotiation of other issues associated with the separation, such as equitable distribution, alimony, child support, etc., and as such may or may not get done quickly, or at all.
While there is nothing needed to “file for separation” in North Carolina, there is an action called Divorce from Bed and Board, which acts as a sort of formal separation. However, in order to file this action, you must have the grounds for a Divorce from Bed and Board enumerated in the North Carolina General Statutes. There are limited circumstances in which this is appropriate, and you should speak with an attorney if you believe your situation may meet these requirements. It is important to note that a Divorce from Bed and Board is different from an Absolute Divorce as it does not actually sever the martial ties, but instead establishes the separation of the parties and terminates the rights and responsibilities that come with marriage.
Separation and divorce come with several complex legal issues. It is important to speak with any attorney if you are contemplating separation, or if you are recently separated. By speaking with an attorney early in the process, you can avoid many pitfalls you may otherwise face throughout the process.
