I realize the letter of the law states that you must be physically separated for a year and one day, yet there is no actual burden of proof required by the state. If there is no burden of proof, why have the duration at all? As such, why can’t you just pick any convenient date rather than wait the whole year?
The law requires that spouses be separated for one year prior to filing a claim for absolute divorce.
While no proof of the date of separation is required, the party filing the claim must swear to the best of his or her knowledge that he or she is telling the truth and sign a verification as to such truthfulness. This is filed with the courts. At the court date for the absolute divorce, the party filing the claim may also have to testify as to the date of separation.
Therefore, if the party filing the complaint picks an arbitrary date and lies about having been separated for one year, then that person is committing perjury which is a felony in NC.
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.
Thank you for the clarification. Regarding a Separation Agreement, can it be back-dated to the date of separation or does it only go into effect upon being notarized? Given it can take some time to draw up the document and reach an agreement, considerable time could pass between the separation and the document signing.
The separation agreement is not back-dated. It only goes into effect after both parties have signed the agreement and both signatures are notarized.
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.
The way I understand the law, a separation agreement is not required to start the clock on the year of separation. Does the introduction of a separation agreement change the timeframe in any way? Meaning, say it takes several months before the agreement is notarized. Does that change anything related to the waiting period?
No, the introduction or execution of a separation agreement is irrelevant to the one-year separation requirement and has no bearing on it.
The one-year separation requirement begins when the spouses stop living together (and begin to reside at two separate residences) and at least one spouse forms 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.
Ok thank you so much for the clarification. On the heels of this, does the legal separation have the authority in regards to medical and auto insurance? Meaning, my wife is on my employer’s medical policy and of course also on our mutual auto policy. Does the separation allow for removal of her from either of those or does it need to be the actual divorce (thinking more so for the medical insurance)?
No, you will not be able to remove your wife from your medical insurance or the auto insurance upon separation because you are still legally married.
You will be eligible to remove her from your medical insurance policy once the divorce judgment is entered. It is a good idea to keep her on your medical insurance even through an open enrollment period if you’ve routinely provided her medical insurance throughout the marriage.
You will be eligible to remove her from your auto insurance policy upon the first to occur of the following: (1) the execution of a separation agreement which states that you’re each separately responsible for your own auto policies, or (2) the entry of the divorce judgment.
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.
Regarding medical insurance and associated costs, how should costs associated with her care be handled until the divorce is finalized? I have an HSA through work where deposited funds are pre-tax dollars. I pay all medical bills from the HSA account. Should I be reimbursed for both the deductible and out of pocket costs specific to my wife? If so, how should that be addressed by her since there are some tax implications?
During the separation period, your wife should be responsible for 100% of her own uninsured healthcare expenses.
Your HSA balance as of the date of separation will be counted as marital property distributed to you.
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.