Legal Separation Vs. Divorce In North Carolina

In North Carolina, couples who no longer wish to be together have two main options to navigate their way out of the relationship: legal separation or divorce. Understanding the similarities and differences between these two choices is crucial in order to make an informed decision that aligns with one’s specific circumstances.

What is Legal Separation?

Legal separation involves undertaking a formal legal process through which a couple can establish that they are no longer living together as spouses. It provides an opportunity for couples to live separately while still remaining legally married and not terminating the marriage itself. In the context of North Carolina, legal separation is commonly referred to as "Divorce from Bed and Board."

How to File for Legal Separation in North Carolina

Seeking legal separation in North Carolina requires one of the spouses to file a "Complaint for Divorce from Bed and Board" in a family court. Unlike in a divorce, the grounds for legal separation must be proven and can include various factors such as abandonment, adultery, cruel treatment, drug or alcohol abuse, or any other fault grounds recognized by North Carolina family law.

The process of filing for legal separation closely mirrors that of a divorce. The plaintiff must ensure that the defendant receives a copy of the complaint and the summons. Following this, the defendant is given an opportunity to respond to the complaint and assert their own counterclaims against the plaintiff.

What Happens During Legal Separation?

During a legal separation, couples must adhere to North Carolina divorce laws. The court may intervene in important matters such as child custody arrangements, child support, alimony, and property division. However, unlike in a divorce where there is a mandated division of assets and debts, legal separation does not require the same division.

Advantages of Legal Separation

1. Provides time and space to work out relationship issues: Legal separation allows couples the necessary breathing space to address and resolve any ongoing concerns or conflicts within the relationship.
2. Maintains certain benefits such as health insurance and social security benefits: Since the marriage is not officially dissolved, legal separation often allows both parties to retain specific benefits that they may have acquired during their marriage.
3. Can take a trial period before finalizing a divorce: In situations where couples are unsure of whether they want to permanently end their marriage, legal separation can serve as a trial period before making a final decision about divorce.
4. Religious or personal beliefs may not support divorce: For individuals with religious or personal beliefs that discourage divorce, legal separation provides an alternative that allows them to live separately without violating their beliefs.

Disadvantages of Legal Separation

1. Does not completely dissolve the marriage: Legal separation does not entirely terminate the marital union, meaning that couples are still technically married, despite living separate lives.
2. Limits legal ability to remarry or enter into other types of legal relationships: Unlike divorce, legal separation does not grant individuals the freedom to remarry or establish other legal relationships.
3. Not recognized in some states: Not all states recognize legal separation, which means that if one were to move to a state that does not acknowledge such arrangements, their legal separation may no longer hold the same weight or protection.

What is Divorce?

A divorce is a legal termination of a marriage, permanently dissolving the marital union and ending the legal relationship between the two spouses. Once a divorce is finalized, both parties are free to remarry, engage in other legal relationships, and embark on a fresh start.

How to File for Divorce in North Carolina

In North Carolina, either spouse can initiate an absolute divorce based on one year of separation without cohabitation. Unlike legal separation, fault grounds are not required to file for divorce. Additionally, there is a mandatory waiting period that must be observed before a divorce can be finalized.

During this waiting period, couples may live separately, but they are not legally allowed to remarry or enter into other legal relationships. In North Carolina, the waiting period is set at one year and one day.

What Happens During Divorce?

During a divorce proceeding, the court considers the same factors as in a legal separation, including child custody arrangements, child support obligations, alimony, and property division. However, unlike legal separation, divorce involves the court actively dissolving the marriage and distributing the assets and debts acquired during the course of the marriage.

Both spouses must either reach a mutual agreement on the terms of the divorce or rely on the court to make decisions in their stead. Once a final court order is issued, the marriage is officially dissolved.

Advantages of Divorce

1. Completely dissolves the marriage, allowing both parties to move on and remarry: Divorce offers a clean break from the marriage, enabling individuals to move on and potentially enter into new relationships or marriages.
2. Resolves all the issues between spouses concerning custody, support, and property rights: Divorce requires the court to address all outstanding issues related to child custody, child support, alimony, and the fair distribution of assets and debts between the divorcing spouses.
3. Provides closure to a difficult or painful relationship: For many individuals, divorce represents a fresh start, putting an end to a challenging or painful chapter of their lives.

Disadvantages of Divorce

1. Can be expensive and time-consuming: Divorce proceedings can be financially and emotionally draining, often requiring substantial financial resources and time commitments from both parties involved.
2. May affect career and finances: Depending on the circumstances of the divorce, individuals may experience changes in their financial status and career stability.
3. Can be emotionally challenging for both spouses and children: Divorce can bring about significant emotional upheaval for both the divorcing spouses and any children involved.

Conclusion

When faced with the decision between legal separation and divorce in North Carolina, couples should take into consideration their individual circumstances and goals. Legal separation provides the necessary breathing space to work on relationship issues, whereas divorce offers a complete dissolution of the marriage and a fresh start. To ensure that one’s rights and interests are protected throughout this process, seeking the guidance and assistance of an experienced family law attorney is highly recommended