In North Carolina, you do not need a “paper” to be legally separated. Once you and your husband are living in separate residences, you are legally separated. However, while the separation agreement you have may have been a properly signed and notarized document, if you did not separate immediately after signing the agreement, it is likely unenforceable. You should either draft a new agreement(or have an attorney draft one), and have your husband sign it either after one of you has moved out, or plan to move out immediately after it is signed.
Divorce in North Carolina is based on 1 year separation, not fault. So, the only reason his affair would be relevant is if you were asking for alimony, which is a separate legal claim from divorce. Alimony is based on dependency (you’d need to show that you were a financially dependent spouse), but evidence of his adultery strengthens your claim. Otherwise, if you are not asking for alimony, his affair would not be considered for the divorce.
Shonnese D. Stanback
The Rosen Law Firm
4101 Lake Boone Trail, Suite 200
Raleigh, North Carolina 27607
919.256.1534 direct voice
919.256.1667 direct fax
919.787.6668 main voice
919.787.6361 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.