Many married couples reach a point in their relationship at which they no longer wish to continue their lives together. Frequently, couples who reach this point choose to pursue a divorce to end their relationship legally. However, there is another option for couples known as legal separation, and in some instances, it can be the more attractive option.
If you and your spouse are looking to separate, but aren’t entirely sure if the permanence of divorce is what you want, then legal separation may be a better choice. Reconciliation is still a course of action in a legal separation, but would otherwise not be possible, or at the very least much more difficult, with a formal divorce. The process of legal separation can be a daunting one. With everything going on around you, you’ll need legal counsel to help protect your assets and rights.
At Marshall & Taylor PLLC, we know that separation can be confusing for anyone considering taking this step. There are several different types of separation, ranging from informal and formal to divorce from bed and board. For each of these scenarios, the legal requirements vary. That’s why anyone wanting to seek a separation from their spouse should make sure they understand the requirements and that their rights and interests are protected by enlisting the support of a skilled legal professional.
To find out more about how we can help, call (919) 833-1040 for an initial consultation with one of our Raleigh separation lawyers.
Why Do I Need a Lawyer?
A couple only needs to live apart for the laws of North Carolina to recognize legal separation. Why have an attorney? If there is no paperwork, the process seems very simple. On the contrary, filing for legal separation is very similar to that of divorce. While some couples have an intent to reconcile, others do not. And when there is an intent for permanent separation, a lawyer can help protect your rights and property before things become complicated.
Couples should consult with an attorney to draft separation agreements and property settlements. These are legally binding documents that when signed by both parties and notarized, must be held up in court. These contracts can settle issues before a full-fledged divorce occurs. It is in your best interest to get in contact with an attorney to understand your rights under North Carolina laws before signing anything.
Separation agreements and property settlements can determine how property is divided, child custody, visitation rights, and other various details, allowing the couples to be in full control and knowledge of what they own. Without a settlement agreement, your issues will need to be resolved in court. This means the court will determine who is entitled to what in a costly litigation battle. Don’t let your property be divided up in an expensive court action. Settle the issues with a skilled attorney at Marshall & Taylor PLLC to make sure your interests come first, and that you can keep the assets you’re entitled to.
Difference Between Separation and Divorce
In a legal separation, both parties are still married, and no formal document must be filed. However, we recommend that couples considering legal separation create an agreement to protect their rights while both parties are still cooperating. In a divorce, the marriage is terminated, and paperwork must be filed. Spouses who are separated will be required to maintain certain court-mandated rights and duties as a couple. This means neither spouse can remarry during the separation.
It is required that spouses live separately with an intent to be separate and apart during a legal separation. There is a legal standard for this separation. The couple cannot live in different areas of the same home even if they do not consider themselves in a relationship. Similarly, couples cannot live in separate houses, but also present themselves as being in a relationship.
With a divorce, it is difficult to return to a life together if the couple decides to reconcile. However, this process is much more comfortable with legal separation. No marriage is required again since the marriage was never terminated in the first place. A separation agreement drafted by a skilled attorney will even make the process simpler. After negotiations with a spouse about assets, liability, and other maintenance of the relationship, our legal team can create a separation agreement. Since each separation agreement is tailored to your arrangement and relationship, it will specify what to do in any given situation. The attorneys at Marshall & Taylor PLLC can draft a thorough separation agreement that puts your best interests first.
Types of Separation
Under North Carolina law, there are many different forms of legal separation, including:
- Informal legal separation: Otherwise known as a trial separation, this is when the couple lives apart from each other for a year or longer, but reconciliation is still a possibility, and sometimes even the goal. The same legal rules would still apply during this separation; this means no remarriage while also upholding the rights and duties. Lawyers should draft an informal agreement in case the situation does not lead to reconciliation.
- Permanent legal separation: In this type of separation, there is no intention of reconciliation. Usually, there is a formal separation agreement between the parties, similar to a court’s order for division of property.
- Divorce from bed and board: This is a fault-based separation that is not a divorce, but is court-ordered. There must be fault on one of the parties and can be shown in various ways such as adultery, drug abuse, abandonment, and more. It requires you and your spouse to live separately, and it will affect the rights the couple has regarding assets.
Depending on the status of issues, like child custody and property division, these options may be more attractive for a couple than pursuing divorce outright. The process can be overwhelming. Our compassionate, experienced lawyers at Marshall & Taylor PLLC will be able to help you decided which type of separation is best for your situation and interests. To learn more about other legal terms, visit the glossary of Marshall & Taylore PLLC.
The Elements of a Separation Agreement
A separation agreement is a legal contract between spouses that can resolve various legal matters, such as child custody, division of assets, and support. State law does not require that you create this type of agreement when you’re separating from your spouse, but it’s a good idea to have one. Settling important issues like who gets to keep the house and have primary custody of the children are crucial to ensure a smooth transition.
Children and taxes – When you’re drafting a separation agreement, you could determine who can claim exemptions on their taxes for each child. The dependency exemption automatically goes to the person with physical custody if there isn’t a legal document specifying this matter.
Child custody – Determining who gets custody of the children is one of the most challenging decisions of a separation agreement. The different types of custody include:
- Legal custody – The parent can make important decisions about their child’s life. These decisions could include medical care, education, and religion.
- Physical custody – The parent who lives with their children all or most of the time, allowing the other parent visitation rights.
- Joint and sole custody – When both parents share custody, it’s known as joint custody. Sole custody is when only one of them has some type of custody over the children.
You should specify in the agreement what type of custody you chose and create a schedule to determine when you and your spouse are allowed to spend time with the children.
Child support – Child support is another tricky issue for separating spouses. When you’re drafting an agreement, it’s crucial that you decide who should pay financial costs for each child, how much the payments should be, and how often you or your spouse should provide them. Each child you have should receive the same amount of financial support they would receive if you were still married to your spouse.
Who pays what might depend on some of these factors:
- Monthly income of each parent
- Number of overnights spent with each parent
- Health insurance premiums
- Cost of child care
- Medical expenses
- Education costs
College expenses – You can add a clause in the agreement that includes who will be responsible for college expenses, if applicable. You should discuss with your spouse if one or both of you should pay, the amount each should contribute, and which costs you should cover, such as tuition, room and board, and books.
Alimony – This is also known as spousal support. It is an amount of money that one spouse provides to the other on a temporary or permanent basis. It can pay for the payee’s living arrangements, food, clothes, and other expenses. There should be a clause that determines how often to pay alimony, the amount, and when it ends (i.e., when the payor dies or the payee remarries). Even if neither one of you intends to seek spousal support, you should add that to the agreement so it’s in writing and no one can go back and change their mind later.
Property Division – Another crucial aspect of a separation agreement is the division of property. North Carolina recognizes three types of property: marital, divisible, and separate.
Marital property is property acquired while you were married, but before you decided to separate. This can include things that you own individually or jointly as a married couple. Even if your name is the only one on the deed to a specific property, you will have to divide it with your spouse as long as it is something you acquired during the marriage.
Examples of marital property are:
- Homes
- Vehicles
- Property
- Pensions
- Benefits
- Business
Divisible property is property derived from the marital property but doesn’t exist at the time of separation. This can include:
- Property acquired after separating that the spouse began trying to acquire before the separation
- Commissions or bonuses received after the separation but earned beforehand
- Interest and dividends on marital property
Separate property is property that one person owns, and the court cannot decide to divide it between each spouse. Examples include:
- Business licenses
- Earned income after the separation
- Property acquired before marriage
- Gifts and inheritance received after separating
Although some people assume that they should split everything 50/50, that is not always how it works. Yes, that might seem like the fair way to do things, but in some situations, it might be more equitable to split something 70/30 or 60/40. It will all depend on what you agree to or if a judge determines what a fair division should look like.
Debt division – If you and your spouse have debt, the agreement could allocate those debts to a specific person and determine who should pay for them. Be sure to include the name of the creditor, the amount owed, and the monthly payment amount. The person responsible for the debt must make complete and timely payments. Even if the agreement allocated the debt to your spouse, the creditor could choose to sue both of you if they stop paying.
Dating clause – You can choose to date other people during a legal separation, and your spouse must treat you as though you are no longer married. They cannot harass you or interfere in your life in any way. However, there could be a clause that determines how you’re allowed to interact with anyone you’re dating. Examples include:
- You are not allowed to have a romantic partner over while your children are at your home.
- You cannot introduce your children to someone you are dating until a specific period has passed.
- Living with someone you’re involved with is prohibited and could affect whether you’re still allowed to receive spousal support.
Tax clause – Some people will include a tax clause allowing them to continue to file taxes jointly until their divorce is final. You could also determine who will receive the refund or how you will divide it between the two of you.
Benefits of Legal Separation
Legal separation often appeals to those who don’t want to end the marriage yet but want separation from their partner. Sometimes, these couples want to work towards reconciliation. Other times, couples would rather be separated than divorced to legally clarify the division of property, child custody, and other crucial matters.
Why Legal Separation May Be a More Financially Sound Decision than Divorce
Since the couple is still married, they will still receive all the benefits such as tax incentives. Another important benefit of separation is to prevent tension between divorce and religion. Some couples cannot get divorced because of their faith, but no longer want to be with their partner. Separation resolves this issue. Since the couple is still married, the spouses are acting in a way that conflicts with their religious beliefs.
Speak with a Separation Attorney in Raleigh
At Marshall & Taylor PLLC, we want to help make this difficult process an easy one. Our attorneys understand that you’re facing many hardships, so we will make sure your interests, rights, and assets are the focus of our work. You are already dealing with a host of emotions, so allow us to handle your case. Let us offer you some peace of mind to take the burden off of you. To us, you are more than just our client. We value openness, communication, and compassion. Decisions made in these agreements will have future consequences that may be undesirable if not done the first time carefully. Our experienced counsel will make sure to meet your needs and protect your future.
If you are considering pursuing legal separation from your spouse, you likely need in-depth information and the guidance of a knowledgeable attorney with a specialization in family law to make the decision that is best for you and your situation. Contact the attorneys at Marshall & Taylor PLLC today by calling our offices at (919) 833-1040 to speak with a qualified member of our legal staff and learn more about how we can guide you through the separation process.