Can a married couple obtain a legal separation and both remain in the same house?

Full Question:

Can a married couple obtain a legal separation and remain in the same house?
06/10/2009   |   Category: Divorce ยป Legal Separa...   |   State: North Carolina   |   #16917

Answer:

North Carolina does not have a specific legal status of separated. You are legally separated on the date you begin to live separate and apart. You must actually live in two separate residences to be considered living separate and apart. A "regular divorce" or absolute divorce can only be filed after one year one day separation. This is the "final divorce".

A divorce from bed and board is a legal document that cuts of some but not all marital rights and obligations, most notably inheritance rights. It is typically used to force one spouse out of the home, and is used to establish that the couple no longer have any financial or marital obligations to the other. You can execute a Separation Agreement at any time even if litigation is pending.

Sleeping in separate rooms does not count as being separated.

The following are NC statutes:

§ 50-8. Contents of complaint; verification; venue and service in action
by nonresident; certain divorces validated.

In all actions for divorce the complaint shall be verified in
accordance with the provisions of Rule 11 of the Rules of Civil Procedure
and G.S. 1-148. The plaintiff shall set forth in his or her complaint
that the complainant or defendant has been a resident of the State of
North Carolina for at least six months next preceding the filing of the
complaint, and that the facts set forth therein as grounds for divorce,
except in actions for divorce from bed and board, have existed to his or
her knowledge for at least six months prior to the filing of the
complaint: Provided, however, that if the cause for divorce is one-year
separation, then it shall not be necessary to allege in the complaint
that the grounds for divorce have existed for at least six months prior
to the filing of the complaint; it being the purpose of this proviso to
permit a divorce after such separation of one year without awaiting an
additional six months for filing the complaint: Provided, further, that
if the complainant is a nonresident of the State action shall be brought
in the county of the defendant's residence, and summons served upon the
defendant personally or service of summons accepted by the defendant
personally in the manner provided in G.S. 1A-1, Rule 4(j)(1).
Notwithstanding any other provision of this section, any suit or action
for divorce heretofore instituted by a nonresident of this State in which
the defendant was personally served with summons or in which the
defendant personally accepted service of the summons and the case was
tried and final judgment entered in a court of this State in a county
other than the county of the defendant's residence, is hereby validated
and declared to be legal and proper, the same as if the suit or action
for divorce had been brought in the county of the defendant's residence.

In all divorce actions the complaint shall set forth the name and age
of any minor child or children of the marriage, and in the event there
are no minor children of the marriage, the complaint shall so state. In
addition, when there are minor children of the marriage, the complaint
shall state the social security number of the plaintiff and, if known,
the social security number of the defendant.

In all prior suits and actions for divorce heretofore instituted and
tried in the courts of this State where the averments of fact required to
be contained in the affidavit heretofore required by this section are or
have been alleged and set forth in the complaint in said suits or actions
and said complaints have been duly verified as required by Rule 11 of the
Rules of Civil Procedure, said allegations so contained in said
complaints shall be deemed to be, and are hereby made, a substantial
compliance as to the allegations heretofore required by this section to
be set forth in any affidavit; and all such suits or actions for
divorce, as well as the judgments or decrees issued and entered as a
result thereof, are hereby validated and declared to be legal and proper
judgments and decrees of divorce.

In all suits and actions for divorce heretofore instituted and tried in
this State on and subsequent to the 5th day of April, 1951, wherein the
statements, averments, or allegations in the verification to the
complaint in said suits or actions are not in accordance with the
provisions of Rule 11 of the Rules of Civil Procedure and G.S. 1-148 or
the requirements of this section as to verification of complaint or the
allegations, statements or averments in the verification contain the
language that the facts set forth in the complaint are true "to the best
of affiant's knowledge and belief" instead of the language "that the same
is true to his (or her) own knowledge" or similar variation in language,
said allegations, statements and averments in said verifications as
contained in or attached to said complaint shall be deemed to be, and are
hereby made, a substantial compliance as to the allegations, averments or
statements required by this section to be set forth in any such
verifications; and all such suits or actions for divorce, as well as the
judgments or decrees issued and entered as a result thereof, are hereby
validated and declared to be legal and proper judgments and decrees of
divorce. The judgment of divorce shall include, where there are minor
children of the parties, the social security numbers of the parties.

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