Separation and Divorce Legal Information

Table of Contents

Navigating Separation and Divorce

Whether you’re just beginning to plan your separation from your spouse or you’ve been separated for some time, there are some important considerations to plan for. This page will contain information from beginning to end for the separation and divorce process for North Carolina. These steps may not all work for your case as they represent legal information and are not specific to your case. If you need assistance navigating the Courts or have questions specific to your situation, you should seek legal representation. 

Separation and Divorce are governed by North Carolina General Statutes Chapter 50. Referencing the statute can be helpful as you prepare yourself. 

Planning for Each Stage

When two people decide to end a marriage, there are multiple factors at varying stages to keep in mind. Having an amicable divorce is always ideal even if they rarely occur in practice. Being properly prepared can keep things amicable or steady even in the rockier moments of divorce. 

The basic stages are

  1. Plan your separation with a Separation Agreement and Property Settlement. (This can be done before or after the separation begins, but the earlier it is in place, the easier things will be). 
  2. Separate. General divorces in North Carolina require physical separation.
  3. Child Custody and Support
  4. Post Separation Support
  5. Alimony
  6. Equitable Distribution
  7. Divorce

Here are some questions to ask yourself as you plan to separate (in no particular order):

  • Will one of you live in the marital home, or will you need to sell it to afford separate housing?
  • Do you and your spouse have separate bank accounts?
  • Did your household bills come out of a joint account or separate accounts?
  • Is your income very different than your spouse’s? 
  • Are you (or your spouse) currently employed? 
  • What does your and your spouse’s employment currently look like?
  • Will you (or your spouse) need financial support during the separation?
  • How long was your marriage?
  • What support did each spouse offer during the marriage? Homemaking is a form of support. Raising children is also a form of support.
  • What was your lifestyle like during your marriage?
  • Did you (or your spouse) receive any gifts or inheritances during the marriage?
  • Are there any items in your home that have emotional significance to you (or your spouse)?
  • Was there an issue that led to the end of your marriage?
  • Was there any domestic violence during your marriage?
  • Do you have any pets? Who will take ownership of the pets?
  • Do you have children together? If yes, how do you want custody to look?
  • If you have children together, do you have childcare/education arranged already and will that be in a central location?
  • Do you (or your spouse) have children from outside the marriage?
  • Do you and your spouse own any properties or businesses together?
  • Do you and/or your spouse own any investment accounts, retirement accounts, pensions, or other financial accounts?

Separation Agreement and Property Settlement

A Separation Agreement and Property Settlement, or SAPS, is a private contract between you and your spouse anytime between when you decide to separate and when you finalize your divorce. 

A SAPS can include anything that a normal contract can because it is a private contract. All items within the SAPS should relate to the marriage in some way. Here is a list of items to consider including in your SAPS, but you can add or exclude items that fit your needs.

  • Date of separation. Including this can be helpful so there is no confusion on when the separation began. North Carolina law requires a year and a day separation to file for a standard divorce, so having the same date in mind clears up when that filing date starts. [Ex: Separation 01/01/2020; divorce can be filed 01/02/2021]
  •  Who files for divorce. Definitely an optional piece, but there is a filing fee for the divorce (currently $225). Having which party will take on this filing fee and the filing process initiation can create a clear expectation. It is also common to note that either party may initiate after the appropriate filing date for divorce, as this allows either party to commence the divorce whenever is convenient.
  • Separate financial property. This can be bank accounts, retirement accounts, trust accounts, investment property, etc. Designating who gets what is helpful to quash fights when divorce looms near. This can also include debts. Having all of the positive and negative financial accounts in mind is helpful for determine a fair and equitable split.
  • Separate physical and real property. This can be helpful as a chance to go through your physical property. Any high value items or sentimental items can be tallied for each party. This can address keeping the distribution equitable, identifying what is and isn’t marital property, who will stay in the marital home or if the marital home will be sold, and other issues related to property. 
  • Discuss children. If you have a child or children together, you can discuss what custody and child support will look like. Although these items can be determined by a SAPS, they are still subject to change up until the youngest child is 3 years beyond the age of 18. 
  • Insurance and medical. These can be helpful to determine, even if just designating that each party is responsible for their own. Some parties will agree to not finalize their divorce for a designated period so that one party can benefit from the other’s medical insurance. 
  • Dating clauses. These are often included in Separation Agreements. These can be helpful to discuss in terms of what expectations are during the course of the separation and especially as it pertains to partners’ interactions with shared children. It is legal to date after you have legally separated, but it is important to be careful in these relationships until your divorce is finalized. 
  • Additional considerations. These can be very specific to your situation. Additional clauses can be helpful to tailor your Separation Agreement to your particular needs. Education clauses can be helpful if one spouse is pursuing or maintaining an education program. Some religions require extra steps to recognize divorce, which can be included within a SAPS. 

Child Custody and Child Support

Child Custody and Child Support can both be discussed and included in a Separation Agreement. Although these can be readdressed until the youngest shared child turns 18 (or up to 3 years beyond that), having these addressed within the SAPS can also give you a baseline starting point. 

Child custody can include what the schedule will look like, who will have specific holidays, the location or providers for childcare and education, how and by whom the cost for childcare or education expenses will be paid, what the child’s religion will be, who will carry the child for health insurance, who will be responsible for medical appointments, etc. 

Child support can include what the general amount to one parent will be, what items will be covered by either parent outside of the child support amount, which parent will claim the child(ren) for tax purposes, when payments should be made, how disputes should be handled, etc.

Post Separation Support

Post separation support is when one spouse financially supports the other after the separation but before the divorce. This is covered by NCGS 50-16.2A. The statute covers the list of factors that come into play for deciding how much and whether post separation support is warranted. A judge can grant post separation support if the petition spouse (the spouse asking for PSS) does not have the financial ability to meet their needs and the supporting spouse has the ability to pay. 

Alimony

Alimony is when one spouse financially supports the other after the divorce in finalized. It’s important to remember that alimony is waived if it is not filed for (and maintained in the courts) before the divorce is finalized. Alimony is covered by NCGS 50-16.3A. Alimony is also requires a finding of a dependent spouse and a supporting spouse.

Equitable Distribution

Equitable distribution is the splitting of assets and debts in a way that is fair and equitable. Part of this process is determining what is martial property and separate property. 

Filing for Divorce

After you have waited your year and a day separation, you can file for divorce. The divorce filing itself is very simple and straightforward, but you want to have all necessary information together. See my Divorce File-It-Yourself page for more information on how to file for your divorce.