Separation with intent to live apart permanently?


#1

My husband has recently talked about filing for divorce soon. We have lived apart for well over a year but always with the conversation being about working to get back together.

I read on your website that separation that can lead to absolute divorce requires the intention of at least one party to live apart permanently.

Can he still file at this point?


#2

He can file for an absolute divorce now if he alleges in the complaint, among other things, that the two of you have lived continuously separate and apart for at least one year and that it was his intention that the separation remain permanent.

The intention of both spouses for a separation to be permanent is not required.


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 so much.

Even though he communicated with me many times throughout the opposite - that he was working on himself to be back together? I guess he could claim otherwise?

Or does intent not need to be communicated to the spouse?

Also, does it matter that he has been in and out of the home many times (with and without permission but not overnight) and gotten together in the expressed purpose of working toward a feeling of safety in the home in order to return?

Thanks so much again


#4

All of this could be evidence that he never formed the intent to remain permanently separate and apart until less than one year ago.

If he nevertheless files for an absolute divorce, you can contest the date of separation in that you contend it to be a more recent date when at least one of you formed the intent to remain separate and apart. This could affect asset values of the marital property and marital debt for equitable distribution purposes.


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.