The FAQ's of "Legal Separation"


As a family law attorney, I am often asked, “How do I start a “legal separation” from my husband or wife?”

A common misconception in North Carolina is that you must file a document or some form of paperwork at the courthouse to become “legally separated” from your spouse; that is not true. In order to meet the legal requirements in North Carolina to become legally separated you must live separate and apart for twelve months. Simply put, one of you needs to move out.

What should I do if my spouse will not move out, but I want them to leave?

Under certain circumstances, one option is a Divorce from Bed and Board. In North Carolina, you may obtain a Divorce from Bed and Board if your spouse commits one of the below:

  1. Abandons his or her family.
  2. Maliciously turns the other out of doors.
  3. By cruel or barbarous treatment endangers the life of the other. In addition, the court may grant the victim of such treatment the remedies available under the domestic violence laws in North Carolina.
  4. Offers such indignities to the person of the other as to render his or her condition intolerable and life burdensome.
  5. Becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.

In the event that the court grants your request for a Divorce from Bed and Board, you are not granted an Absolute Divorce. A Divorce from Bed and Board Order will require one spouse to move out of the marital residence so the twelve-month period of separation can begin.

What are my legal options during the 12-month period of separation?

The common issues and potential claims that results from a divorce are; child custody, child support, postseparation support, alimony, and equitable distribution. All of these issues/claims that may exist as a result of an impending divorce can be resolved and worked through during the twelve-month period of separation. Therefore, when your twelve-month period of separation ends, you will be able to obtain a divorce with all issues/claims resolved.

What if my spouse does not want to be divorced?

In North Carolina, only one party must have the intent to end the marriage. Your spouse cannot stop you from obtaining a divorce after you have been separated for twelve months. I often find that some clients believe they can file an objection to the request for a divorce filed by one spouse; that is not true.

Going through a divorce can be an emotional and difficult time for many. It is always a good idea to speak with an attorney that has knowledge and experience in family law matters. An attorney’s expertise can help to make the process as smooth and fair as possible for you and your family. Please note, every case is different and you should seek legal advice based on the specific facts of your case.