Join us in our Cornelius office on May 3, 2025, as attorneys Patrick K. Bryan and Michael Chapel break down various legal aspects of separation and divorce – in a presentation entitled “Breaking Down Breaking Up.” In the spirit of said presentation, this article examines one of the most asked questions our family law attorneys get. That is:
Should I Stay, or Should I Go?
There is possibly no more personal question to ask than “Should I stay, or should I leave.” Though this question is likely considered, at some point, by almost everyone in a relationship, and though the question may often serve as artists’ musing (think the Clash and Dave Matthews), only the person in the relationship can truly answer this question. No answer to any question is more unique to individuals than the answer to this appropriate question – “Stay or go?”.
The answer may be arrived at easily, or it may require considerable time to form.
Knowing the implications of staying, and the implications of going, can help someone questioning a relationship. Knowing what to potentially expect can, and should, inform one’s decisions regarding the next chapter of one’s life.
Legal Considerations
In North Carolina, a legal separation begins when spouses begin living separately and apart with the intent for the separation to be permanent. Fish v. Fish, 857 S.E.2d 140 (N.C. Ct. App. 2021). Parties must be separated for at least one year before filing for divorce. In practice, legal separation typically requires the spouses not to share the same residence; thus, living in separate rooms in the marital residence is usually insufficient to begin the requisite period of separation.
As for the intent for the separation to be permanent, this needs to be continuous. Indicators that the parties do not have the intent to separate could be if both parties agree in discussions about reconciling, the parties hold themselves out as a couple, or if the parties engage in non-isolated instances of physical relations. Casella v. Alden, 682 S.E.2d 455; Higgins v. Higgins, 358 S.E.2d 553 (N.C. Ct. App. 1987). Communication alone is permitted during the legal separation period, but avoid discussions about “getting back together” if you want to maintain the separation.
There is no requirement for a written agreement to commence the legal separation. Some parties, however, create separation agreements. A separation agreement is a legally binding contract that is signed by both parties. Jackson v. Jackson, 868 S.E.2d 104 (N.C. Ct. App. 2021). The document may detail property division, spousal support/alimony, child custody, and/or child support arrangements.
What should be contemplated by a separation agreement depends on the circumstances of the parties. For the most part, these documents can include just about anything regarding the terms of the separation. Common provisions may include:
- Property Division: If the parties have acquired marital property, property obtained after the date of marriage, it will generally need to be split between the spouses. Brackney v. Brackney, 682 S.E.2d 401 (N.C. Ct. App. 2009). Separate property, being property owned before the date of marriage or acquired as a gift or inheritance, does not need to be split. What is marital and separate property is often contentious between parties, and if there is any question regarding the status of certain property, we recommend contacting an attorney. Assets subject to division may include but are not limited to, real estate, bank accounts, retirement accounts, investments, vehicles, business interests, debts, and other household goods.
- Spousal Support/Alimony: In most marriages, there is a supporting spouse and a dependent spouse. Awards of alimony are based on the needs of the dependent spouse, the ability to pay the supporting spouse, and multiple other factors such as the length of the marriage, other marital contributions, standard of living during the marriage, marital misconduct, and more. Collins v. Collins, 778 S.E.2d 854 (N.C. Ct. App. 2015). Spousal support can take the form of monthly payments or a lump sum. It is important to note that in North Carolina, District Court judges generally have broad discretion in determining: the propriety of any alimony award; its duration; and its amount.
- Child Custody and Support: If the parties share minor children, a separation agreement may acknowledge a custody arrangement and holiday schedule. The parties may also address child support. Even with an agreement on child custody and/or child support, North Carolina courts are never divested of their jurisdiction to determine the best interest of a child. In lay terms, this means that custody and child support orders are subject to modification.
It is important to note that if parties do not resolve their property division or spousal support claims before the filing of a divorce complaint, they risk losing those claims. If these claims are not raised prior to the divorce being finalized, the claims are waived.
Financial Considerations
While it can be difficult to talk and think about, do not let the fear of the financial ramifications force you to remain in an abusive or dangerous domestic situation. An experienced attorney can help you navigate the details. Regardless, if you are considering a separation, it is crucial to evaluate your finances and plan accordingly.
Considerations may include:
- Dividing Assets and Debt: As discussed above, both assets and liabilities can be marital property— it is important to determine what is marital and what is separate. Know what you and your spouse are likely to be entitled to and what debt may have to be split.
- Spousal Support/Alimony: If you are the supporting spouse in the marriage, you may have to pay some amount of spousal support or alimony.
- Child Support Obligations: If the other parent has more custodial time, or you have a greater income and ability to pay, you may have to pay some amount of child support. The North Carolina Child Support Guidelines provide formulas to calculate parents’ financial obligations.
- Updating Financial Accounts: You may consider closing joint accounts, opening a separate account, and updating beneficiaries on insurance policies and retirement accounts.
- Living Arrangements: Whether you decide to remain in the marital home or live somewhere else, you may need to consider the cost of household expenses or renting elsewhere. Exclusive access to, or ownership of, a home can also be a form of child support awarded to a parent.
Emotional and Other
Beyond the legal and financial considerations, it is important to prioritize your well-being if considering a separation. It is a difficult decision and can impact your life in many ways. Other changes to consider:
- Co-Parenting: Creating a clear and cooperative parenting plan is essential for minimizing disruption for children. Not only does it create a conducive environment for children, but cooperation around parenting and custody matters may reflect well on your case if it were to necessitate litigation.
- Emotional Support: Seeking counseling, support groups, or professional guidance can help manage stress and emotional strain.
- New Routines: Daily life may look different post-separation, so establishing a new routine for work, childcare, and household responsibilities is key.
- Legal Name and Documentation Changes: If you plan to change your name or update legal documents, ensure you complete the necessary paperwork for identification, financial accounts, and insurance policies. A name change can be incorporated as a provision of the judgment for Absolute Divorce.
Next Steps
If you, after considering everything, have decided separation is best, it is important to take the steps to establish a legal separation. Again, you must begin living apart from your spouse and intend to permanently separate. After separation is established, here is a guide to the appropriate next steps to help you move forward.
- Consult with an Attorney: Ensure you understand your legal rights and responsibilities. There are many ways that your divorce could proceed— some divorces resolve quickly with Separation Agreements while others go through litigation. Litigation may proceed for an extended amount of time, especially if going through a custody battle or the process for equitable distribution.
- File for Divorce When Eligible: After the one-year separation period, you can file for divorce in North Carolina. The date that you began living apart with the intent to permanently separate is the day that your separation period began.
- Finalize Custody and Support Arrangements (if applicable): Work toward permanent custody and support agreements if they are not yet in place.
- Plan for Long-Term Finances: Consider how your financial situation will change post-divorce and take steps to secure stability.
- Embrace New Beginnings: While separation can be challenging, it also offers an opportunity for personal growth and a fresh start.
Contact King Law Offices to Ensure Your Rights are Protected
Separation can be complex. Understanding the implications of separation and divorce can help you make informed decisions and prepare for the future. Consulting with an experienced North Carolina family law attorney at King Law Offices can better ensure you are more able to step strongly into any next chapter of your life. The stress of separation is unavoidable. But, the attorneys at King Law can lighten your load by handling the legal aspects – which can allow you the opportunity to more focus on yourself, and if applicable, your children.
Want to Learn More?
Join Attorneys Patrick K. Bryan and Michael Chapel for “Breaking Down Breaking Up” on May 3, 2025, at our Cornelius office. This exclusive event will dive deeper into the legal aspects of separation, divorce, and child custody in North Carolina.
Reserve your spot now: Click here to sign up
Don’t miss this opportunity to get informed, ask questions, and gain clarity on your next steps.