Are we living separate and apart?

My wife and I own a house that she lives in about 26 days a month. I spend weekends there. I rent a house in another city (where i work) in my name that i live in 5 days per week and which she visits about 4 days per month.

Are we living “separate and apart”?

No, even though you have separate homes, you are still living together as husband and wife. In order to be separated you must not “hold out to the public” that you are still living as a married couple, and at least one of you must have the intention of separating permanently when you do split.

Thanks for the quick and definitive reply, though it’s not the answer i expected or wanted! Is there somewhere i can look to get a sense of what “hold out to the public” actually means? I find nothing when I google this expression. It seems mighty subjective to me. Does it refer to what i do or to what other people think? How can i be bound under the law to what other people think (or to what my spouse does or says)? Is the idea for me to be seen in public as little as possible with a spouse from whom i intend to separate? Does removal of a wedding ring carry any weight?

At this point you are still holding out to the public that you are husband and wife. Her visits to your home at this point still constitute cohabitation, whether or not you are wearing your rings. In order to separate she needs to stop coming to visit your place.

Thanks for pointing out and clarifying the “hold yourself out” concept. It seems ironic that you can have “isolated incidents” of sexual intercourse (presumably in private!) with your separated spouse but you can’t be seen with them in public.

I just read the article on your website about the details of the absolute divorce court appearance. It lists the questions an attorney and a judge normally ask. Nothing is said about periodic cohabitation. Does that mean that this issue, which you’ve indicated would restart the 1-year clock, is relevant only if the defendant contests the divorce action?

The Court will inquire as to whether the parties have been living continuously separate and apart for one year without resuming the martial relationship. The Plaintiff must answer under oath.

You (Erin) noted earlier that “In order to separate she needs to stop coming to visit your place”.

A problem is that i want a separation and she doesn’t. She wants to keep coming and even to move some of our stuff into the place i’m renting in my own name. How can i prevent this?

If she has a key change the locks, and let her know she does not have permission to visit your home.

We recently moved from Florida in June 2009 and are new to NC law & rules. We purchased a home together in October 2009. My children are begging me to divorce their father and bring peace to our home once and for all. I can financially handle that now, but fear that he will not leave the home on his own. How can I be “apart” for a year if he refuses to leave the house? This was not required in Florida. So if the spouse refuses to sign the separation agreement and refuses to leave the house - the only recourse for the wife is to take the 4 kids, dog and cat and leave herself?? How is this possible? He is not physically abusive but rather emotionally abusive to all of us. What steps can we take to make this divorce happen and get our lives back?

If he has engaged in emotional abuse that rises to the level of making your life intolerable, you may seek a judicial separation by filing an action for what is called divorce from bed and board to have him removed from the house.

If such a claim is unsuccessful you may have to move out, file for equitable distribution of property, and seek an order awarding you possession of the home as an interim distribution of property.

To recap, my wife and i own a house where we lived together for several years. A few months ago, I began renting an apartment out of town closer to where i work. She used to visit me in the apartment but she doesn’t any more. And I have been visiting her in our house on weekends, but I will not be doing so any more. So if I intend this arrangement to be permanent, can I now consider that we’re living “separate and apart”, even though it was a few months ago when i first started living in the apartment? I’d hate to have to move back in just to be able to move out again!

Yes, if you no longer cohabitate at all and it is your intention to remain physically separate, the one year time period begins now.

If we sign a Separation Agreement and file it with the office of the registrar in the county we live, will it be considered “we are living separate and apart”? Can I rent a room from my spouse for one year in THAT CASE or I still have to move completely out of the house?

The agreement is not filed anywhere, but may be recorded in the register of deeds office. You and your spouse must live in separate residences in order for a separation agreement to be valid. Renting the room does not constitute separation.

Thank you.
We have children and it would be very stressful for them if the parents are going to live in separate houses. We are living in separate rooms now and intend to continue to do so even after the divorce until children at least 12-14 years old. Is any way to get a divorce with such arrangements? What proof will be required by a court in order to prove that we feel ourselves living separated? Can we receive a court permission to do so? Is it theoretically possible? E.g. does the law prohibit us to do so (or it is just common sense or interpretation of the law)?

You cannot obtain a divorce unless and until you have lived in separate houses (not separate rooms) for 366 days, there are no exceptions.