I have a lot of clients who come in wanting a “legal separation” and wondering what they have to file to get one. The short answer is, there is no such thing and there’s nothing to file. Here is the longer explanation on just what is required to be separated.
“Separation” is just what it sounds like. Someone moves out of the house. That, in a nutshell is all that is required to be separated. As soon as a spouse, and it doesn’t matter which one, moves out of the house you have met 90% of the requirements for a separation. The other 10%? That is the intent of the parties. It can’t be that someone goes on a business trip for 3 weeks or that one person takes a vacation with both parties recognizing that it is a temporary thing and that he or she is coming back home after some period of time. At least one of the parties has to intend that it be permanent. It doesn’t matter who intends it to be permanent–the person leaving the home or the one staying in the home–as long as one of the parties has that intent.
Can you be separated by moving into different bedrooms or by no longer having sex? No. The law in North Carolina is clear that someone has to physically leave the house. So, if you are in a situation where you and your spouse have agreed to separate, have moved into separate bedrooms (or are sleeping on the couch), and intend for the relationship to end, it doesn’t take effect until someone moves out of the house.
Can you sign a separation agreement before someone moves out? In most cases, yes you can. As long as there is a provision in the agreement that states one person will be leaving the marital residence shortly after the agreement is signed (within about 30 days is best), and that person actually does leave, then you can enter into a valid separation agreement.
Can you start a suit for custody, equitable distribution, or other marital claims before you separate? Generally, no. Most of the family law statutes rely on the parties being separated before you can actually file a claim against the other party. There are some exceptions, but as a general rule you can’t start litigation before you separate.
It can be a struggle to get past this first hurdle. Often, no one wants to move out and both spouses will outright refuse. There are very few ways to actually get someone out of the house absent some extreme circumstances, like domestic violence in the home or some situations that rise to the level of having law enforcement get involved. I think the way the laws are written and used, they contemplate that if a person really wants to be separated and end a marriage and their spouse won’t leave the home, the spouse who wants to end the marriage will bear the burden of moving out.