Separation questions

  1. No, a separation agreement is not necessary. It is the agreement that will usually help with Equitable Distribution, custody, child support, alimony or any other such issues. Your one year one day separation begins the day that you and your spouse begin living separate from each other. That is the date that needs to be in the agreement.

  2. No. A separation agreement is an agreement but the actual separation does not have to be mutual. Those months do count towards the one year one day separation requirement.

3)It is legal to date during separation, however it is not legal to have sex with anyone other than your spouse prior to absolute divorce. Though being realistic…it happens…
The repercussions of dating vary. If you have a separation agreement in place now there would be no legal reason to worry unless that person was involved in your life prior to separation; and your spouse can prove it. There could be emotional repercussions especially if there are children involved…but no legal reason not to move on with your life.

Thank you!

One more question regarding dating during the separation period: Is it legal regardless of whether or not there is a Separation Agreement in place?

  1. No you do not have to have a Separation Agreement to begin the one year period. You must be living separate and apart, that is all that is needed to begin the waiting period. The months you live apart before signing the Agreement do count towards the separation period. You do not have to have a Separation Agreement prior to filing for divorce, however, if you do not resolve these issues before the divorce is granted, you lose all right to petition the court to deal with these issues.

  2. The separation does not have to be by mutual agreement, however the separation only officially begins when one of you intends for it to be permanent.

  3. You can date, but you cannot engage in a sexual relationship. If you date during the seapration, you run the risk that your spouse may accuse you of being involved in a sexual relationship with someone, which may affect alimony.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 9343.0044

Durham & Chapel Hill Office
1829 East Franklin Street
Building 600
Chapel Hill, NC 27514
(919) 321.0780


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.

  1. Is a Separation Agreement necessary for the one-year period to begin? For example, if my spouse and I have been living apart for several months prior to signing a Separation Agreement, do these months count towards the one-year separation period? Do we even have to have a Separation Agreement prior to filing for divorce?

  2. Does the separation have to be by mutual agreement? If we have been living apart, but I have not yet declared my intentions to divorce, do these months apart still count toward the one-year separation period?

  3. Is it legal to date during the one-year separation period and/or once the divorce papers have been filed but before the divorce is final? What are the possible reprecussions for dating during the separation period or before the divorce is final?

Thank you!!!