Separation Criteria


#1

Hello, I am in the Army and currently deployed to the Middle East. Last October, 6 months before I deployed my wife started getting close to another woman and started having an emotional affair. I found out that she was attracted to other women. Her friend moved away and we have had issues since. Well recently she is making it clear that she is probably coming out of the closet and will most likely not want to be married anymore. She has stated that she has been conflicted our whole marriage and is just now coming to terms with it. We have 4 children. Here are the questions, the background that I provided will hopefully help these be answered.

I deployed in July, currently we are not legally separated, I will go home in Dec for a month and am trying to figure out where to stay. I want to stay at the house with my kids, but my wife might be there also. Does my time overseas count towards the required separation? if so, will my three weeks that I am at home reset the time meaning that we are back at 0 days.

Seeing as she has had these feelings since we were married, and I am getting ready to retire, what are the odds that she would be entitled to a portion of my military retirement? It seems messed up that I would have to give her alimony, child support AND my retirement if she had this emotional affair, and the entire duration of our marriage she has had thoughts of being with other women, to include when we took our vowels.

Thank you.


#2

Your date of separation is the date that you and you wife stopped residing in the marital residence together and when one of you formed the intent to remain separate and apart. Your date of separation can start while you are deployed, but it would need to be the date that you formed the intent to remain separate and apart.

Your three weeks back at the marital residence likely will not reset the one year separation period if you do not resume the marital relationship, you do not hold yourself out to the public that you are husband and wife, and you do not have the intent to reconcile. However, I would caution you about doing this because the argument could be made by your wife that there was an intent to reconcile the marriage.

Your wife will still be entitled to one-half of the marital estate, including your retirement. An affair of any kind, emotional of physical, or any kind of marital misconduct generally does not affect equitable distribution (property division). An emotional affair will not affect alimony although an act of illicit sexual behavior would.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#3

Thanks for the info Anna. One last question. If she married me while still not sure about her orientation only to admit to me that through out the entire marriage she was confused or attracted to other women, would there be grounds for false pretenses when we got married? She has stated that she did it because it was what was expected of her, and that she wanted to be a good catholic at the time. After the fact, over the course of the last few months, she has mentioned that she had wanted to experiment with other women and was drawn to other women prior to meeting me.


#4

No, this would not be grounds for false pretenses or any civil liability.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#5

Thanks. So I am curious what my next step is. I emailed my wife and explained that I wanted a divorce. She agreed and we would like to try through mediation to come to common ground on all of our marital properties and child custody and hopefully settle out of court. Since she was notified and agreed is there anymore paperwork needed and what would our next steps be. Thank you


#6

Your next steps would be for each of you to gather your financial documents (account statements, credit card statements, etc.) and exchange them. This is so each of you know what the other has so that the marital estate can be divided equally.

You can schedule a mediation with a mediator that you both agree to, but note that the mediator will not draft the separation agreement for you. Check out our Sample Separation Agreement that you can use as a model if you choose to draft your own.

Prior to mediation it may be helpful for you both to exchange offers for permanent resolutions for all issues that apply: equitable distribution, alimony, child custody, and child support.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#7

Thanks Anna, so to confirm, even though when I deployed we were trying to
make things work, since I told her while I am deployed that I want a
divorce, the 12 months separation time starts now? She is under the
impression that it does not, and that would start once I return and we live
in separate houses. Whereas, I thought that it counts because we are not
living together, because of my deployment), and I now made the decision.
Thanks Again.

V/R,

Keith

“The willingness with which our young people will fight in any war, no
matter how justified, shall be directly proportional as to how they perceive
the veterans of earlier wars were treated and appreciated by their country.”

  • General George Washington

#8

You are correct. The date of separation is the date when Husband and Wife live separate and apart and at least one of them had the intent to remain permanently separate and apart.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#9

Two more questions for you: We have 4 kids and if we are separated is there
any stipulation that says that I can not visit the kids at my wifes house,
and hang out with them as long as I am not staying there over night, etc.
And last question, you have to be separated for at least 1 year and 1 day
to file for divorce, is there a no later than (like 18 months, 2 years) for
the separation prior to applying to divorce. Not that I want to drag it on,
just looking at options. Thanks.


#10

There is no requirement that you must have visitation with your children somewhere other than your wife’s residence.

There is no deadline to file for an absolute divorce. You can file anytime after the one year period of separation has passed, whether that is the day after or 10 years later.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.


#11

I and my husband have been in nc for 2 yrs i want a divorce but my question is Is there away i can stay in home but separate rooms so i can still take our 17yr old amd 18 yr old to work and school…he works during the week ive been leaving on weekends…does there have to be a paper stating all this or proof i am no longer in home?


#12

It sounds like you may be able to do a nesting situation. This is where you and your husband continue to live in the marital residence but you do so at different times such that neither of you are ever there at the same time or ever overlap a night. You could have possession of the home during the week (while your husband resides elsewhere) and he could have possession of the home on the weekends (while you reside elsewhere).

You don’t need proof of this for absolute divorce purposes other than your sworn testimony that you and your husband separated with the intent to remain separate and apart and that you have lived continuously separate and apart for at least one year.

In contrast, you could not obtain an absolute divorce if you and your husband continue to reside in the same residence at the same time but sleep in separate bedrooms.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.