When Are You Separated?
In North Carolina, you must be separated for one year before you can file for absolute divorce. While you can have decisions regarding custody, property, and support before you are divorced, you cannot even file your action for divorce unless and until the one year separation has been completed. While some parties find it is necessary to continue to reside in the same home for financial reasons, or until a certain event occurs, North Carolina courts have held that you cannot be separated in the same house. N.C. Gen. Stat. section 50-6 provides that:
Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months. A divorce under this section shall not be barred to either party by any defense or plea based upon any provision of G.S. 50‑7, a plea of res judicata, or a plea of recrimination. Notwithstanding the provisions of G.S. 50‑11, or of the common law, a divorce under this section shall not affect the rights of a dependent spouse with respect to alimony which have been asserted in the action or any other pending action.
Whether there has been a resumption of marital relations during the period of separation shall be determined pursuant to G.S. 52‑10.2. Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.
N.C. Gen. Stat. 50-6 (2005).
In addressing whether the parties have lived “separate and apart”, North Carolina courts have repeatedly held that these words require “both a physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation.” Earles v. Earles, 29 N.C. App. 348, 349, 224 S.E.2d 284, 286 (1976).see also Mallard v. Mallard, 234 N.C. 654, 68 S.E.2d 247 (1951). In the case of Myers v Myers, the court noted that even if the Plaintiff stated after separation, in the presence of third party witnesses, that he did not want a legal separation or divorce, “… it is not an admission that he did not intend to separate on 14 June 1980 [the date of separation]. Many married people intentionally separate and remain apart for some time before deciding to seek a divorce or legal separation.” Myers v. Myers 62 N.C.App. 291, 302 S.E.2d 476 N.C.App.,1983. In the case at bar, it is without contradiction that the parties separated August 3, 2003 and they did not again cohabit as husband and wife.
While it is true that “The exigencies of life and the necessity of making a livelihood may sometimes require that the husband shall absent himself from the wife for long periods B a situation which was not contemplated by the law as a cause of divorce in fixing the separation.” Byers v. Byers, 222 N.C. 298, 22 S.E.2d 902 (1942), a situation which started out as temporary, or one in which the parties intended to continue the marriage even though living separate can change. The intent to separate is reinforced if the Plaintiff continues in the same employment and both parties continue to live in the same town. In such cases where there was no reason why the parties could not have continued to cohabit or to have resumed marital cohabitation had the parties desired to do so, intent is self evident. In such cases, if a party had wished to do so, she/he could have and would have had the other party move in with him/her. Most recently, the North Carolina Court of Appeals addressed this narrow issue. In a 2002 case, the parties separated when the Husband came from Florida to North Carolina for his business in January, 1999, but he did not tell his wife of his intent to separate until September, 1999, several months after Wife and the minor child had moved into a house in NC, which the Husband never moved into. The Wife tried to assert that there was no separation until the Husband told her of his intent not to continue the marital cohabitation. The Court of Appeals stated, “The sole issue before this Court is whether one party’s intent to cease cohabitation without his spouse’s knowledge, but for the statutory time period under Section 50‑6, is sufficient to grant that party a decree of absolute divorce. We hold that it is sufficient.” Smith v Smith 151 N.C.App. 130, 564 S.E.2d 591 (2002). This was true even where the Plaintiff had returned to the marital home overnight on at least two occasions, but slept in a different room.
As the court pointed out in Myers v Myers, supra, it is the intention not to live together as husband and wife that is manifested by the separation of the parties. Martial cohabitation is to live together while married. The fact that one party may have hoped or wanted or expected that things would change and they might again live together, or that one party’s intent to end marital cohabitation was not spoken, is irrelevant.