Do I need a formal court filing to initiate a separation from my spouse?


In North Carolina, the date of separation is very important and can have major impacts on a person’s rights and responsibilities in a family law case. Pursuant to North Carolina General Statute § 50-6, a marriage may be dissolved upon the application of either party, if and when the spouses have lived separate and apart for one year and at least one party has resided in North Carolina for a period of six months.

While no formal documentation or court filing is required to establish a legal separation, the one-year period of separation cannot begin until the parties are no longer living together. In certain situations, establishing a date of separation can be a fact intensive analysis, especially where there have been periods of time where there has been a resumption of marital relations.

What qualifies as a “resumption of marital relations”?

North Carolina General Statute §50-10.2 defines “resumption of marital relations” as the voluntary renewal of the spouses’ relationship, as shown by the “totality of the circumstances.”

One year from the date of a couple’s separation, they will be eligible to petition the court for an absolute divorce. If a couple resumes their marital relationship before obtaining an absolute divorce, the one-year period of separation will be tolled. If the one-year separation period is tolled, a person cannot use the original separation date to obtain a divorce. Simply put, when there is a resumption of marital relations, the one-year countdown stops.

Stopping the clock on the one-year separation period can have serious consequences in the event of a later separation. Unless otherwise stated, a resumption of marital relations may void an existing Separation Agreement. A period of resumed marital relations could also make a difference in the way marital assets and debts are valued and distributed during the Equitable Distribution process. Additionally, a resumption of marital relations could provide a defense, known as condonation, to allegations of marital misconduct.

It can be very difficult to determine if a couple has truly resumed marital relations. North Carolina General Statutes §50-6 and §50-10.2 specifically provide that isolated instances of sexual intercourse will not toll the statutory one-year period of separation required to obtain an absolute divorce. There is no specific definition of “isolated instances of sexual intercourse”, but North Carolina case law has made clear that more than a few sexual encounters between separated spouses is necessary to constitute a resumption of marital relations.

Other factors that may be considered by the Court in the “totality of circumstances” analysis could be: the statements made to children, other family, friends and each other, whether or not one spouse continues to maintain a separate residence, and the length of time the spouses spend with each other.

Each situation is unique and this information is not to be construed as applicable to every set of circumstances. The attorneys at Vernon Law Firm can address these and other family law related issues that are specifically tailored to individual needs during consultations.