I don’t know the laws in Miss. but in NC you have to be a resident for at least 6 months before filing for divorce. Your husband can request that the children not be removed from the state if this is where they reside now. In NC there is a one year one day separation required to divorce but NC is a no fault state, meaning that the separation and/or legal insanity are the only two reasons divorces are granted. Fault may play a role in custody, alimony or equitable distribution but it does not help in filing for divorce. As to why the year separation, I’m not sure. At the time my husband and I were waiting out his 10 more months separation from his ex, it seemed like a stupid law to me also, but then I realized that it takes that long and sometimes longer for everyone, especially children to understand, cope and get used to a new situation. Some people during that year actually do reconcile and stay together so it does save some marriages to have to wait that long to divorce.
You are legally separated the day that you begin living separate and apart from each other and you do not have to have an agreement to be separated. Without his cooperation you can not take the children out of the state. Until custody is decided either by the two of you or by the courts you have equal rights to the children or joint legal and physical custody with equal time spent with each parent.
Good Luck to you.

sounds like a smart man

Thank you for the response. I do, however, feel like I am trapped persay because of the fact that he will not separate and I can not afford to live on my own-the reason I wanted to move back to Mississippi to my mother’s. This leaves me with no date to start my “separation”. I guess for people who can not afford to live on their own and a spouse who won’t separate are in case “trapped” because you have to literally be separated (in separate dwellings for an entire year) in order to start divorce proceedings. That is how I feel it is unfair. I know for some people this may be a blessing, but the state should not take personal matters, with different circumstances in each marriage, and make it their decision how/when/or if people should divorce. And as for the second response-grow up-you have no idea what goes on in my home.

lisa t. logan

Dear lisa t.l.,

If you do not have an order regarding custody each of you would be free to take the children out of the state. However, you run the risk that your Husband could go to court and get an emergency order requiring the children to be returned to the state. You do have to be separated in this state for one year and one day before you are eligible for file for divorce.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 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.

I want to be separated from my husband to eventually get a divorce. He says that I am more than welcome to leave at any time, but he is keeping the kids.In other words he is not wanting to separate. He knows I want the children. I wanted to move back to Mississippi adn divorce there, but he says legally I cannot take the kids from him out of state. Am I stuck? I can not for the life of me understand these divorce laws here in North Carolina. Why is it that you have to be separated for a year, etc.? Does this mean without his cooperation and to sign an agreement I can not follow through with this (unless he is insane, a substance abuser, an adulterer, etc.)? That is crazy in itself.

lisa t. logan