Maginnis Howard no longer practices family law. This blog is for informational purposes only.
The term “separation” has a particular legal meaning when related to marriages and divorces. Marital separation occurs when a husband and wife interrupt marital relations without an actual dissolution of the marriage. Without a valid premarital agreement or separation agreement, the obligations and rights that arise from the marriage remain unchanged. Only a divorce, written separation agreement, or property settlement agreement can change those rights. In North Carolina, marital separation occurs when they no longer live together as husband and wife.
To be separated under North Carolina family law, a husband and wife are required to live apart in a way that outsiders can see they are not living together. Because of this standard, a husband and wife cannot continue living in the same house. Even if they stop maintaining sexual relationships, if they are not living separate and apart, they are not legally separated.
After a husband and wife separate, it is possible to reconcile. In North Carolina, reconciliation, or resumption of marital relations, occurs when the husband and wife voluntarily renew their relationship. This is viewed based on the totality of the circumstances. Isolated incidents of sexual relations between the parties may not constitute resumption of marital relations. In a recent Wake County case, the court found that reconciliation did not occur where the husband and wife lived together and engaged in sexual relations for a period of one week following the initial separation. The issue of reconciliation can be very important if a separation agreement or property agreement was executed. Should a court find that marital relations were resumed after a separation agreement or property agreement was signed, the separation agreement will be invalidated.
Additionally, the date of separation and whether parties have resumed marital relations are necessary when determining whether the statutory period of one-year separation has elapsed for purposes of obtaining an absolute divorce. The date of separation is also used for determining the valuation of property in equitable distribution law.
