Separation Versus Divorce: Everything You Need to Know | Allan Brandon Tise, PLLC, Attorney at Law

Navigating through the maze of relationship woes can be confusing and complicated, especially when it comes to determining whether separation or divorce is the best course of action at the moment. You may be flooded with various questions about each decision's implications, processes, and emotional tolls.

These critical life-altering decisions necessitate a thorough understanding. This blog will discuss some aspects of separation and divorce to bring clarity to these complex matters, and provide you with helpful insights and critical factors to consider when deciding between these two procedures.

Separation

Actual separation in North Carolina occurs when spouses begin to live under separate roofs and at least one spouse has formed the intend that the marriage was over. The term legal separation refers to a process by which a married couple can live apart from one another without having their marriage formally dissolved by the court. May be achieved in North Carolina by separation agreement or divorce from bed and board. Unlike divorce, the couple's marriage remains valid and they retain the right to reconcile or file for divorce at a later date.

A separation agreement is a contract between the spouses that lays out the agreed upon terms and constraints. The agreement should specify the moment of separation, which is critical for equitably dividing any assets amassed during the separation. However, in North Carolina the parties may singe a separation agreement in contemplating of separation so long as they actually separate within a “reasonable” time thereafter.

If the parties desire they may include custody language to establish the legal and physical custody arrangements. This specifies the living arrangements for any children and the custody arrangement between the parents. It may also specify a schedule for making child support payments. However, custody language in a separation agreement is not a judicial determination of custody and could be superseded by a custody order.

If either spouse cannot obtain a divorce for moral or legal reasons, a legal separation may be an option. An important point to remember is that a legally separated couple cannot remarry until they divorce. Sometimes, a separation can form the foundation for a final divorce decision and entail judicial procedures and court orders.

When compared to divorce, legal separation provides for the preservation of certain privileges and rights. For instance, even after a legal separation, spouses may still be able to make decisions about each other's healthcare and finances, and they may continue to receive some of their former partner's Social Security and Medicare benefits. When a couple divorces, however, they no longer receive these benefits. Language in a separation agreement may address these issues and many others.

Reconciliation is another area where separation differs from divorce. Many couples view separation as a temporary solution, and during that time they may be able to work through their issues and reconcile.

Divorce

A divorce is a legal procedure that allows a married couple to officially end the relationship, move away from one another, and remarry if they so want. It severs the rights, obligations and privileges of marriage.

In North Carolina, one must be actually and continuously separated more than one year before filing for absolute divorce and must maintain the physical separation up through the date of divorce.

To reclaim the rights and privileges of a legally married couple, the couple must remarry after a divorce.

Contact us at Allan Brandon Tise PLLC for legal advice and representation when deciding how you want to handle any marital separation and divorce proceedings.