What Are the Requirements for Separation and Divorce in Wake County, North Carolina?

You thought your marriage would last forever when you tied the knot. Unfortunately, it didn’t work out, and you’re now ready to divorce your partner. You are not alone. With 3.1 divorces per 1,000 people, North Carolina has one of the highest divorce rates in the country. Added to this unfortunate statistic, North Carolina also has some of the most complicated divorce laws, such as requiring one year and one day of separation before being eligible to file for divorce.

Because North Carolina has complicated divorce laws, it’s essential to seek advice from an experienced divorce lawyer to make sure that you meet all of the state’s legal requirements for granting a divorce. Your lawyer can also assist you with child custody, child support, alimony, and other issues. Continue reading to learn about the three legal requirements for filing for divorce in Wake County, North Carolina, and what you need to know about being legally separated.

1. Legal, Valid Marriage

You must have a legally-recognized marriage to obtain a divorce in North Carolina. The state does not recognize bigamous marriages or common-law marriages, but North Carolina does recognize common-law marriages entered into in states where this type of marriage is permitted. Therefore, a couple considered married in a state that permits common-law marriages, or in another country with different marriage laws altogether, may very well be regarded as legally married in North Carolina. However, a few factors must be met for the validity to be accepted.

2. Separated for One Year and One Day

A separation agreement is not required in North Carolina to legally separate. However, you must be living in separate homes from your spouse for one year to be considered legally separated, and at least one of you must intend for the separation to be permanent. This 12-month period of living in separate homes must be continuous. If you and your spouse move back together again, you will have to restart the 12-month period regardless of the reason. In general, if your relationship has ended, but you still live in the same house or live in separate houses without intending to be permanently separated, you are not legally separated.

3. North Carolina Resident for Six Months or Longer

In addition to the continuous 12-month separation period, you or your spouse must currently be a resident of North Carolina on the day you file for divorce, having lived in the state for at least six months. It does not matter if you were married in North Carolina or in another state. If you have children and want a North Carolina family court judge to decide child custody, visitation, or child support issues as part of your divorce, the children must have resided with a parent in North Carolina for at least six months before filing for divorce (or since birth if they are infants). If your spouse has lived in North Carolina for six months and intends to remain there, you do not have to continue to live in North Carolina after the filing.

Separation Agreement

As mentioned previously, you are not required to have a separation agreement to separate in North Carolina legally. However, there are some benefits to having one in place when you separate and plan to get divorced. We’ll answer some common questions about them to help you determine if it would be beneficial for you to have one.

What is a Separation Agreement?

A separation agreement is a private contract between separated or soon-to-be-separated spouses. A separation agreement contains agreed-upon terms that address various issues surrounding the separation, such as who is responsible for specific bills, whether one spouse will remain in the marital home, and where the children will live. A typical separation agreement covers the terms of the divorce, property division, spousal support, and child custody and support if there are children.

Do I Need a Separation Agreement?

To be legally separated from your spouse, you do not need to sign a separation agreement. On the other hand, a separation agreement can resolve many legal issues that arise when a marriage ends. You can, for example, decide how your property will be divided and whether one of you will pay alimony to the other. In some cases, spouses may ask for the separation agreement to be included in their final divorce decree. Spouses who can resolve their separation issues through a separation agreement can make those decisions themselves and avoid going to court.

What Are the Requirements for a Valid Separation Agreement?

A separation agreement must be in writing (rather than verbal), signed by both parties, with both signatures notarized. However, a party cannot be legally compelled to sign a separation agreement. As a result, it’s usually a good idea for the parties to agree on as many significant issues as possible before paying a divorce attorney to draft the separation agreement. If you and your spouse are unable to reach an agreement or if your spouse refuses to sign the separation agreement, you will have wasted the money spent on its drafting.

How Do I Get a Separation Agreement?

A divorce attorney is typically involved in drafting and negotiating separation agreements, which can be tailored to your family’s specific needs.

McKnight Law: Your Divorce Lawyer Advocate, Fluent in the Emotions of Divorce and Child Custody

If you’re looking for a divorce lawyer in the Raleigh and Wake County, North Carolina, area, McKnight Law can help. We strive to help our clients feel comfortable and at ease throughout the divorce process, exhibiting authenticity and approachability throughout our services. You deserve an advocate at your side during this time to empower you to work towards the next chapter for your family. You can trust our lawyers to walk you through every step of the successful divorce process, and we can provide you support on every aspect of divorce and family law, including a child support lawyer.

Call (919) 413-7002 to schedule an appointment to sit down and talk with divorce attorney John McKnight. If you decide divorce is the best option for you, John will be involved in all aspects of your case. As a boutique law firm staffed by two experienced attorneys, you can rest assured that you will work with authentic, honest, and transparent professionals when you choose McKnight Law. A trusted name in the community, John has worked on political campaigns and served on the Boards of Directors for the Wake County Bar Association and the Wake County Women’s Center. His active volunteerism and willingness to serve have earned him recognition from people from all walks of life in Wake County, offering an advantage you might not receive from other firms that don’t have the same community presence.  

Copyright© 2022. McKnight Law. All rights reserved.

The information in this blog post (post) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.

McKnight Law
3801 Lake Boone Trail Suite 420
Raleigh, NC 27607
(919) 413-7002

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