If you and your spouse are living apart from each other with the intent not to resume the marriage, you are "legally separated." In North Carolina, you do not need anything in writing to be legally separated. You only need to live apart from each other.
Sometimes couples put in writing their understanding and agreement as to important decisions such as: who will pay the debts? who will keep the kids? who will keep what property? This mutual understanding is called a "separation agreement."
A separation agreement is a contract between you and your spouse about important decisions. You do not have to have a separation agreement to be legally separated.
If your spouse offers a separation agreement, you do not have to sign it.
In North Carolina to get a divorce or absolute divorce, you have to live separate and apart at least one year and one of the spouses must have intended the separation to be permanent. It is also required for one of the spouses to have lived in N.C. at least six (6) months immediately prior to filing for divorce.
If your spouse does not agree with the divorce and tells you " I won’t give you a divorce," you still are entitled to the divorce if you have been separated for one year and you meet the requirements described above. Your spouse does not have to agree or consent to the divorce.
In addition to the divorce, your spouse may request distribution of property, spousal support (alimony), or custody, but you are still entitled to the divorce.
If there is property which you and your spouse acquired during marriage, and you do not have a separation agreement, you should consult an attorney because any questions about property must be resolved before the divorce becomes final.
If you have entered a separation agreement that is satisfactory, you may want to incorporate it in the divorce decree. This will make the separation part of the order of the court and it can be enforced by the court.
If you want to incorporate a separation agreement into the divorce, it must be part of your complaint, or if you are the defendant it must be part of your answer to the divorce.
To find other Legal Aid of North Carolina materials, including any materials mentioned in this document, go to lawhelpNC.org. If you need legal help please go to legalaidnc.org/.