My wife and I have been married 20 years. Our child is graduating from high school this year, and we are miserable. We own a home with lots of debt and we cannot afford to separate without selling our home first. We both work, but there simply is not enough money to maintain two households without first selling the house. Is there any way we can declare ourselves separated and maintain the same household until the house sells? Why is the North Carolina waiting period for divorce a year? I hear that one year is a long time as compared to other states. Can we settle our property now? We have retirement, cars and furniture, along with the house?
Generally, North Carolina requires 365 days of separation, with the intent of one spouse to live separate and apart forever, before a spouse may apply to the court for an absolute divorce. Separation in this state means, literally that the spouses, during separation, must have separate residences and essentially, conduct themselves as single for the entire 365 days. Isolated incidences of sexual intercourse, such as a weekend at the beach with an estranged spouse, do not start the 365 day period over.
The answer to your first question is that you cannot declare separation and maintain the same household until the house sells under North Carolina law. North Carolina has strong pro marital advocates in our legislature, as compared to other States. Some States, such as Alabama, allow spouses to live together through the date of the divorce and the division of property. Other States have much shorter waiting periods of living apart, such as six weeks. North Carolina, if anything, is going in the opposite direction of the national trend which is to recognize the desire of a party to a marriage to go his or her separate way, without regard to whether the spouses are under the same roof.
The practical solution for you is to list and sell your home. When the home sells, you and your spouse simply go your separate ways.
The good news is that in North Carolina, spouses can settle equitable distribution (property division) by a notarized agreement at any time before, during or after the marriage. Yes, you can settle your property division now, while you are waiting on the house to sell. Of course, the agreement will need provisions for who pays the debt, property taxes and insurance on the house until it sells and how the proceeds will be divided when the home sells.
This blog is revised from a previous Ask Carolyn in The Rhino Times.