Legal separation in North Carolina occurs on the date you and your spouse move into separate residences with the intent to continue living separate and apart from each other.
Whether or not you can or should move out of the house is an issue that deserves careful consideration and discussion. Moving out without a clear plan or strategy can potentially have negative legal ramifications on your case.
In preparing for separation and divorce, it is very important to gather the records you need to get a clear picture of the family finances, assets and liabilities. First, collect the documents necessary to determine family income and expenses, including tax returns, paystubs, bank statements, and credit card statements. In addition, gather documents about your assets and debts, including investment or other financial account statements, appraisals of real or personal property, and statements for retirement accounts. If you or your spouse own a business, locate the corporate tax returns, profit and loss statements, balance sheets and shareholder agreements.
If you suspect your spouse is having an adulterous affair, collect documentation that may evidence the affair, including detailed cell phone records. Do not access any computers or accounts that are password protected or to which your spouse has not authorized access. Do not use computer spyware to intercept email messages; this is illegal, and this evidence will not be admissible in court. Evidence can also be obtained by a private detective, from journals, diaries, or day planners kept by your spouse, as well as from credit card statements which track your spouse’s expenditures.
With regard to the impact of a separation on your children, it is a good idea to consult with a child psychologist who can help you communicate with your children about the separation in a straightforward and reassuring way. Above all, tell your children you love them and acknowledge any feelings they may express about the situation.
According to North Carolina General Statute § 50-16.1A, post-separation support means spousal support to be paid until the earlier of either the date specified in the order of post-separation support, or an order awarding or denying alimony. An award of post-separation support is discretionary with the court.
A domestic action can often be a lengthy process. Post-separation support is a type of temporary support. It helps bridge the gap from the time a dependent spouse separates and first files a claim for alimony until the claim can be heard and ruled upon.
According to North Carolina General Statute section 50-16.1A, alimony means an order for payment for the support and maintenance of a spouse or former spouse, periodically or in a lump sum, for a specified or for an indefinite term, ordered in an action for divorce, whether absolute or from bed and board, or in an action for alimony without divorce.
In determining if you’re entitled to alimony, the court considers whether you’re a dependent spouse, your spouse is a supporting spouse and whether an award of alimony is equitable considering the circumstances. The court also considers acts of marital misconduct committed when determining alimony.
If the court finds that a dependent spouse committed an act of illicit sexual behavior during the marriage, the court will not award alimony. However, if the court finds that a supporting spouse committed an act of illicit sexual behavior during the marriage, then the court will order the supporting spouse to pay alimony to the dependent spouse.
The amount and duration of an alimony award are completely within the discretion of the court. There are no set rules for determining how much alimony you may pay or receive, nor for how long you may pay or receive it. Generally, however, these awards are based upon the income and expenses of the parties.
Divorce from Bed and Board
In North Carolina, a divorce from bed and board is the equivalent of a judicial separation, and is a fault-based claim. You may be entitled to a divorce from bed and board if your spouse abandoned the family, maliciously turned you out of doors, committed adultery, a cruel and barbarous act or indignities that rendered your condition intolerable.
Only the injured spouse is entitled to bring an action for divorce from bed and board. This action will not enable you to remarry; you must still obtain an absolute divorce.
In our Podcast, Jaime Davis explores common myths surrounding separation and divorce with her law partner Carrie Tortora. Carrie and Jaime discuss such topics as whether “papers” are required to be legally separated; whether committing adultery means a spouse loses everything; and whether the children get to decide where they live.
