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Divorce and the Separate-and-Apart Requirement (Part I)

It’s quite common for those entering the divorce process to misunderstand some basic vocabulary surrounding the subject. And understandably so, as it can all be a bit puzzling. One area of divorce law that causes some confusion at the outset concerns differences between “separation” and “divorce.” The two are distinct terms and have significant legal import, the more important of which, in many respects, is “separation.”

Most spouses beginning the transition of splitting up focus their attention on the end goal, namely, legal divorce. Many even understand the twofold prerequisites of a divorce in North Carolina: (1) one-year separation and (2) residing in the state for at least six months. Where some confusion arises concerns the legal significance of “separation” and what constitutes separation for purposes of fulfilling the one-year rule. This series of posts will explore an important aspect of the law concerning spousal separation in hopes of clarifying an oft-misunderstood and critical point of law.

At the center of this discussion, and of the law of divorce generally, is a short statute, which reads in part: “Marriages may be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for one year, and the plaintiff or defendant in the suit for divorce has resided in the State for a period of six months.” N.C. Gen. Stat. § 50-6 (emphasis added). At first blush, the rule seems fairly straightforward. But what exactly does this mean? What constitutes living “separate and apart” for purposes of starting the one-year clock? Must the parties be in agreement as to the reason for a separation? Must both spouses know of the intention of the other when living in separate places? In a word, no.

A couple cases highlight some important propositions that flesh out the meaning of N.C. Gen. Stat. § 50-6. The first case, Beck v. Beck, can be quoted in its entirety. The opinion states (with some minor omissions):

One spouse “contends that in order to be entitled to a divorce [the other] must show that a marital separation for the statutory period was by mutual agreement or under a decree of court. This was true prior to 1937. In that year the divorce statute was amended so as to remove this requirement. During the past 35 years a husband and wife have been deemed to live separate and apart within the meaning of the divorce statute when: (1) they live separate and apart physically for an uninterrupted period of [at least one year] . . . ; and (2) their physical separation is accompanied by at least an intention on the part of one of them to cease their matrimonial cohabitation.” Beck v. Beck, 14 N.C. App. 163, 187 S.E.2d 355 (1972) (emphasis added).

The takeaway here is that only ONE spouse need have the intent to be separated for purposes of divorce. The other party may have no idea whatsoever that divorce is the reason for their spouse’s absence. Suppose, for example, Wife moves to another town for purposes of employment, secretly intending to separate from Husband because she ultimately wants a divorce. Husband may be completely in the dark with respect to Wife’s larger goal, and he may be surprised to get a complaint for absolute divorce a year later. Under Beck, though, this is entirely acceptable. As with any area of the law, however, there are exceptions to this rule. We can explore those in other posts. Suffice it to say, separation in North Carolina is never as straightforward a concept as it may seem, which we’ll explore in greater detail in Part II next week.

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