Quality, Responsive and Trustworthy Legal Services
We offer clients a strong work ethic combined with prompt and personalized client care.

 

 

 

 

 

Can’t We Just Pick a Date of Separation and Get a Divorce?

We hear this question all the time. The short answer is no, you can’t choose a date of separation. In the real world, efficiency and common sense would suggest that you could. But this is not an agreement to apply for services. It is a lawsuit, and a judge must use the law. Divorce is a legal status, similar to a legal status of biological parent. Each state has laws dictating how long a married couple must be separated before they are eligible to divorce. Here in North Carolina, the law requires a one-year separation. This should not be confused with our residency requirement, which requires at least one spouse to live here for six months before he or she is allowed to file a claim for divorce.

All Divorces Are Lawsuits

It can be easy to forget that even uncontested divorces are filed by a plaintiff, served on a defendant, and ruled upon by a judge. In fact, most people don’t even have to be in court. Except for incurable insanity, the only ground for a divorce in North Carolina is a one-year separation. This requires that at least one spouse intends for the separation to be permanent. Examples of one-year separations that don’t fit into this category are couples separated by military service or incarceration. When you sign the complaint, the document that starts the lawsuit, you do so under oath, under penalty of perjury, a crime. The complaint cannot even be signed until the day after the year has passed. Worse yet, if you lie about the DOS, your fraudulently obtained divorce can be set aside (voided) because you did not stay separated for one full year.

Why Do We Have to Wait a Year?

The government doesn’t want you to have a fight with your husband or wife, separate for a few days or weeks, get divorced and then reconcile before remarrying. Many lawyers, myself included, believe the length of separation is too long. Other states require a longer wait only if the couple has children, and let the non-parents divorce much sooner. While many believe the waiting period is excessive, it is the law and we must all obey it. There are plenty of others who believe one year isn’t long enough. Our past state laws required a two-year waiting period, and not too long ago, there was a proposed “Healthy Marriage Act” that would’ve restored the two-year waiting period. In fact, it would have required counseling of some sort for parents and non-parents alike. 

Can We Just Stay on Opposite Ends of the House?

Although the idea of separating in the same house is a clever one, it is inadequate. A separation requires living under two different roofs. This can be difficult for couples who don’t have enough money to establish two separate homes. But if separate homes weren’t required for a separation, it would be impossible to clearly identify who is or isn’t separated. Your spouse could claim the one-year separation, and you could have a sheriff serve you with a divorce complaint out of the blue. Brand new parents need the whole nine months to figure out what they are doing with this new legal title of parents. And, so it is with divorces. You have to figure out medical insurance, where you will be living for the immediate future, your short-term finances, sometimes your employment, and perhaps what to do about your children. On the upside, the clock no longer stops ticking if there are “isolated incidents of sexual intercourse between the parties . . .” In the past, you could be separated for a long time but any sexual intimacy restarted the clock for one-year separation. 

 

NC Gen. Stat. §50-6

Print Friendly, PDF & Email