What is a Legal Separation During the COVID Pandemic?

With many North Carolina families forced to spend more time together as a result of lockdowns or unemployment from COVID-19, some couples are finding they no longer want to be married. Spouses are experiencing fear of being exposed to COVID, fighting over finances, and many other minor issues. If you find yourself in this situation, one of the first steps in the divorce process is to legally separate from your spouse. If you are not sure of how to become legally separated, seek the advice of a family law attorney.

North Carolina General Statute § 50-6 states that “[m]arriages 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.” In other words, if you have lived in the State of North Carolina for at least six months and have lived separate and apart from your spouse for at least one year, you are entitled to file a complaint with the court for an Absolute Divorce.

What does separate and apart mean? The North Carolina Court of Appeals held that “[t]he words ‘separate and apart,’ as used in G.S. 50–6, mean that there must be both physical separation and an intention on the part of at least one of the parties to cease the matrimonial cohabitation.” Romulus v.  Romulus, 715 S.E.2d 308 (N.C. App. 2011). The North Carolina Supreme Court in Dudley held that “[i]n addition to the intention of at least one of the spouses to separate, the parties must physically separate in such a way that indicates [a] cessation of cohabitation of husband and wife.” Dudley v. Dudley, 33 S.E.2d 489, 490 (N.C. 1945). The Court of Appeals in Romulus held that “separation implies . . . the living for such a period in a manner that those in the neighborhood may see that the husband and wife are not living together. Romulus, 715 S.E.2d 308, 328 (N.C. App. 2011). The parties must hold themselves out to the community as if they are no longer man and wife.

N.C. General Stature § 50-6 requires the parties of the marriage to reside in separate residences and that the intent of at least one party to want no longer to be married.  Family law attorneys are often asked, “because of financial issues I cannot afford an apartment, can I just start sleeping in another room away from my spouse?” The answer is no. Sharing the common areas of the marital home and residing in different bedrooms does not qualify as separate and apart.

With the rise of COVID cases, travel restrictions, lockdowns, and increased unemployment, couples are finding it harder to get separated because of the extra expense and losses in income. There is no way around the required waiting period of one year in North Carolina. Some states like Illinois, have reduced their mandatory waiting periods to file for divorce to six months. Illinois has recently dropped the requirement to live separate and apart. Illinois is allowing spouses to claim that they are legally separated under Illinois law while living under the same roof but sleep in different areas of the home.