Before you can file a claim with the Court to assess your marital estate and begin the asset and debt distribution process, you are required to be separated from your spouse under North Carolina law. The “Date of Separation” is created when both parties reside under separate roofs and one party has the intent to end the marital relationship, even if that intent is not verbally conveyed or written in correspondence. Creating the “Date of Separation” is not always as easy as it seems. Here are common ways parties can complete this crucial step in the process:
One spouse voluntarily leaves the marital residence. Often, one spouse has already planned or is in the process of deciding on a new residence. A new residence could include moving in with a friend or family member for a few weeks or renting an apartment. If the spouses own more than one house or residence (with separate roofs), then it is possible to create the “date of separation” when each party lives in a different residence.
Before anyone moves, the parties negotiate who will leave and who will stay via a Separation Agreement. Even before the “Date of Separation,” spouses can engage in negotiations or a voluntary mediation to reach an agreement on how the separation will occur. For example: if the two of you only have one residence, then you may agree via a Separation Agreement that the two of you will list the residence for sale. Once the house is sold then the new residences will be separate. A Separation Agreement will also detail deadlines, how expenses are handled in the meantime, and several other details pertaining to the property and debts of the parties.
One important thing to note is that it is very difficult to “force” a party to leave the marital residence if they do not wish to. It is important to work with a family law attorney as you navigate the law before and after your Date of Separation.
If you or someone you know is going through a difficult separation, our Modern Legal Team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Tiffany A. Byrd
