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Date of Separation

Date of Separation
Statute:§ 50-6
Description:The date of separation is the day one spouse leaves the marital home and at least one spouse intends never to cohabitate again
Takeaway:The date of separation is more significant in financial issues than the date of divorce

The Date of Separation is the day the spouses stopped living together with at least one spouse intending the separation be permanent. Generally, the date of separation is more important in marking the day the marriage ended than the actual divorce decree.

Impact

  • Property Division (Equitable Distribution): When dividing marital property and debt 50/50, in most cases the Court is looking at the value of the property or debt as of the date of separation. This is effectively when the joint venture called marriage ended. Financial decisions and spending after that point are the responsibility of each individual spouse.

  • Alimony/Child Support: The date of separation is the farthest back the court can go for retroactive child support and alimony.

  • Divorce: The date of separation is the day the timer starts for the one year of separation that is required before you qualify to file for divorce.

Criteria

The date of separation is the date[1]:

  1. One spouse moves out of the marital home

  2. At least one of the spouses intended for the separation to be permanent

  3. The parties do not reconcile or continue the marital relationship in such a way that would make it appear to others that they are still together[2]

Living in separate rooms does not start the date of separation. The spouses must live in different homes all-together. However, separate apartments in the same building is enough to trigger the date of separation, unless the parties are still behaving like a married couple. Behaving like a married couple can include things like sharing accounts, cooking together, and sharing household responsibilities, even if there is no sex or intimacy between the parties.[3]

References

  1. Earles v. Earles 224 S.E.2d 284, 29 N.C. App. 348 ("The words "separate and apart", as used in G.S. 50-6, mean that there must be both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation.")
  2. Matter of Estate of Adamee 230 S.E.2d 541, 291 N.C. 386 ("Separation as grounds for a divorce "implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together.")
  3. Lin v. Lin No. 9114DC1082, 773 (Feb 1, 1993) ("We note that the cessation of sexual relations does not alone constitute separation...grocery shopping and cooked the family meals; family meals were usually eaten in the apartment occupied by plaintiff; defendant frequently used the kitchen in that apartment to cook and did the laundry for the parties and their children using the washing machine in that apartment")
David King — Attorney

David King, Esq.

David King is a licensed North Carolina family law attorney (Bar ID #54884). He started King @ Law in Raleigh, NC in 2019. King @ Law is focused on practical solutions for middle-class litigants with flat-fee and payment plan options. Click below to schedule a free Introductory Call.

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