The date of separation is the date when one or both spouses decide that they will no longer live together as a married couple and they begin living separate and apart with the intention to not resume the marital relationship. Moving to the spare bedroom or the basement does not count as separation.
The separation date can be hard to determine in cases where the spouses separate and then reconcile multiple times before finally deciding to divorce. Generally, the courts will look at the last date of reconciliation as the separation date, but there are some exceptions to this rule.
The legal significance of the separation date is that it marks the beginning of the one-year period that the spouses must be living apart in order to get a divorce. Under North Carolina law, you must be separated for a full year before you can file for divorce. This is true even if both spouses agree to the divorce and sign all of the necessary paperwork.
If you have any questions about separation or divorce in North Carolina, it’s important to speak with an experienced family law attorney who can help protect your rights.
Intent to Divorce
The main element in defining intent is that some action must be taken by one spouse that demonstrates they have tried to leave the marriage. This could be anything from physically moving out of the house to writing an email mentioning your intended divorce. In order for the date of separation to be valid you must show intention to leave the marriage and become physically separated. There is no way around this law.
Date of Separation in Equitable Distribution
The date of separation is very important in equitable distribution, which is the division of property between spouses at the time of divorce. All property that was acquired during the marriage is considered to be marital property and is subject to division. However, any property that was acquired after the separation date is considered to be separate property and is not subject to division.
This can be especially tricky to navigate for business owners. Small business owners in particular can see the values of their businesses fluctuate greatly from year to year. As a result, the date of separation can have a big impact on how much each spouse gets in the divorce.
For example, if a business receives a significant new contract that affects business valuation before the date of separation, the higher value will be included in equitable distribution calculations. If however, the contract comes in after the date of separation it would not be included. It’s easy to see how this can cause disagreements and is just one example of how important it is to have an experienced attorney on your side who can help protect your interests in property division.
How Support Payments Are Affected
Awards of child support and spousal support can also be impacted by the date of separation. Support payments are generally based on the incomes of both spouses at the time of the divorce. Judges have the discretion to back date child and spousal support payments to the date of separation.
We Fight For Your Rights
If you have questions about how your divorce might be affected by the date of separation, it’s important to speak with an experienced attorney who can help ensure that your rights are protected. Gantt Family Law in Raleigh is highly respected and rated 10 out of 10 on Avvo. We have more than 20 years of experience handling complex divorces, property division, and support payments. We’re here to fight for you and ensure that you get the best possible outcome in your divorce.
Call us today to schedule a consultation.