Legal Separation & Child Custody

Legal Separation, Separation Agreement, Child Custody Law in North Carolina

In North Carolina, legal separation occurs when:

  1. You and your spouse begin living in separate homes.
  2. You and/or your spouse intend for the legal separation in NC to be permanent.

For legal separation to begin, you and your spouse must live in separate residences. Separation has not begun if you are living in the same house, regardless of whether you sleep in separate bedrooms or living “roommate style”. One of you must move out of the home for legal separation to begin.

What is a Separation Agreement?

If you and your spouse are living separately, you are legally separated in North Carolina. You are not required to file anything with the Court or obtain separation papers. The legal issues mentioned above (equitable distribution, child custody, child support and alimony) are often addressed via a document called a Separation and Property Settlement Agreement. A Separation Agreement is typically prepared by an attorney that both parties sign before a Notary Public. You are NOT required to sign a Separation Agreement. If you receive a Separation Agreement from your spouse or spouse’s attorney, you should review this document with your own attorney before signing it.

A Separation Agreement should be prepared by an attorney. Generic templates or forms downloaded from the internet are often inadequate and fail to address matters unique to each state. Signing such a document without consulting an attorney can have serious consequences. This is particularly important regarding marital property. If you sign a Separation Agreement in which you and your spouse divide up your property, you will not be able to ask the Court for equitable distribution in the future.

Legal Separation and Divorce

For most couples, separation is the first step along the road to divorce. In North Carolina, you and your spouse must be separated for at least one year and one day before you are eligible to file for absolute divorce. In addition to the requirement of being separated, one spouse must have resided in North Carolina for at least six months prior to filing for divorce.

Divorce

What about child custody and child support?

If you and your spouse cannot agree on child custody, you will need an experienced child custody attorney. We have provided some general information regarding child custody laws in North Carolina and encourage you to contact our offices to schedule a consultation with a child custody lawyer. Child custody attorneys at Herring & Mills, PLLC can explain the child custody laws in North Carolina, methods used by the courts in determining child custody, the best interests of the child, child support child custody, joint custody and child sole custody. We also have a frequently asked questions page about child custody available on our website.

With regard to child support in North Carolina, we have provided information on our website for your reference. You should also visit the Department of Health & Human Services, Child Support division for important information about obtaining an order for child support. If you live in Raleigh NC or Wake County, you may also wish to contact the Wake County Child Support Services office.