Divorce vs. Legal Separation in NC; which is better?

divorce or legal separation

by Attorney Laura Esseesse

What is the difference between absolute divorce and legal separation in North Carolina?  The former concludes in a final judgment dissolving the marriage, while the latter can usually be reversed simply by entering into a new agreement with your spouse and/or resuming living together as a married couple.

In order to obtain a divorce in North Carolina, the parties must be separated for a period of at least one year prior to applying to the court for a divorce. A married couple in North Carolina is considered “legally separated” by the court at the time at which the parties move into separate residences with at least one spouse having the intention to remain separated indefinitely. During the period of separation and before the entry of a divorce, the parties may enter into agreements about the division of their property, spousal support, child support, and child custody.  There is no requirement that either party actually proceed with a divorce after one year.  However, one spouse cannot prevent the other spouse from seeking a divorce, so long as the minimum separation period of one year has been satisfied.

A “legal separation” in North Carolina is different than in other states. In North Carolina, it is relatively rare to seek an actual decree of legal separation from the court at the time that one spouse moves out. In order to do so, one must prove marital fault on the part of the other spouse. (See : Court-Ordered Separation) However, it is possible to achieve a “legal separation”  through the negotiation of a separation agreement.

A separation agreement is a private contract (not submitted to the court) between spouses where spouses agree that they will live separate and apart.  In such a contract, the spouses would typically also agree to a division of their property, debts, and spousal support. Spouses might also agree to child custody and child support in a separation agreement.

Alternatively, it is often advisable to incorporate custody and child support terms into an agreement that is submitted for approval by the presiding family court judge. Once entered by the judge, such agreement is called a “Consent Court Order.”

A legal separation established by a contract where the parties agree to live separate and apart, but not necessarily to ever divorce, can usually be reversed simply upon an actual resumption of the marital relationship. Typically, such separation agreement would contain language stating that the agreement becomes void as to any terms not already carried out, if the parties resume living together as a married couple.  It is important that such agreements be carefully drafted, because the effect of a separation agreement, particularly as to what would happen in the event of reconciliation, can vary widely depending on the actual terms and language of the contract.

Here are a few of the more common reasons couples choose to remain legally separated over getting divorced:

  • Religion: Some couples may choose to live separate lives yet will not divorce on moral or religious grounds. In this scenario, legal separation is a viable alternative so long as neither party wishes to remarry.
  • Children: The inevitable lifestyle changes that come with divorce can be particularly difficult on children. Some couples choose to separate and delay the actual divorce action until their children are mentally prepared for the change or have left the home.
  • Time & Perspective: For those unsure of divorce, a legal separation gives both parties some space, time to think, and a taste of independent life once again. Spouses can change their minds at any time while they are legally separated. A separation can provide the clarity needed to help make a final decision as to whether to divorce or attempt reconciliation.

N.C. Gen. Stat. § 52-10.1 provides for the execution of a separation agreement. In any of the above instances, such an agreement can clarify child custody and support issues, division of property, responsibility for marital debts, and spousal support obligations.

In North Carolina, divorce may be a better option for those who know that reconciliation is neither likely nor desirable upon completion of the first year of separation. Here are a couple of common reasons why divorce may be the preferred option to an indefinite legal separation in North Carolina:

  • Certainty: In cases where both parties are resolute in their desire to start over, divorce may be a preferable option to a long-term legal separation.
  • A Desire to Date or Remarry: If either party wishes to remarry, a divorce will be required. Additionally, a dating relationship may influence a judge’s custody award if one parent allows a paramour to stay overnight while the children are in that parent’s custody.


In any event, a physical separation of at least one year is required before either spouse can file for a divorce. However, some individuals may wish to remain legally separated and never actually divorce. If you wish to be legally separated from your spouse, a separation agreement may be a good option.  Should you require assistance with a separation agreement, divorce action, or simply need an informed opinion on which option may be best for you, an experienced family law attorney can be an invaluable asset.

Choosing between separation and divorce in North Carolina can involve complex legal questions. While friends and family will offer their opinions, this is a highly personal decision and every situation is unique. Take the time to learn the advantages and disadvantages of each. The more informed your decision, the better your prospects are for a favorable outcome.

The Family Law attorneys at Montgomery Family Law are here to help and ready to put their many years of experience and sound judgment to work for you. Contact us today at (919) 816-9002 to schedule an initial consultation.






Separation in North Carolina


by Attorney Laura Esseesse

Before the court will grant an absolute divorce in North Carolina, one must be legally separated for over one year. The date of legal separation is considered to be the date on which one or both parties move from the marital residence to a separate location with the intention of a permanent separation.

One cannot live under the same roof as a spouse and be legally separated, even if a separation agreement exists. North Carolina law requires the spouses to be living actually physically separate and apart (not on the same premises) in order to be legally separated.  In theory, it might be possible for an exception to be made if the residence has been divided into two distinct, unconnected units with no overlap or common area. However, one should first consult a North Carolina family law attorney before considering this option, as such an arrangement is generally not advised and might well not be recognized as a valid separation by the court.

How does one file for separation in North Carolina?

While one need not file for separation in North Carolina to be considered legally separate, many couples seeking dissolution of their marriage choose to enter into a separation agreement.  Typically these agreements cover issues concerning child custody and visitation, child support, alimony, and division of property. A separation agreement is a legally binding contract between spouses and can be executed only after the parties have already separated or with the stated intent to separate immediately after.

Once you or your spouse have moved out of the marital residence with no intent to resume the marital relationship, the initial conditions for legal separation have been met. The state of North Carolina does not require the filing of any paperwork on the date of separation to be deemed “legally separated” in order to later qualify to file with the court for divorce, after a separation of one year.

Who can draw up a separation agreement?

A separation agreement can be drawn up by either party and once agreed to, requires both spouses to sign the document in the presence of a notary public.  As a legally binding contract, a separation agreement can be incorporated into a divorce decree (or not). Regardless, both parties are bound by this legal contract. Enforceable under North Carolina law, the contract enables one party to seek legal remedy against the other should the terms of the contract not be met as previously agreed.

What should be included in a separation agreement?

Separation agreements can cover anything you wish so long as it does not conflict with any existing laws or violate public policy. Some of the items typically covered in a separation agreement include child custody, child support, spousal support, health coverage, benefits, and tax issues. One may address property division of assets and debts as well, assuming that a property settlement has not been executed as well.

Should marital debt be included in a separation agreement?

Creditors are third parties and as such are not bound by any agreement reached between spouses as part of a separation agreement. If a spouse agrees to pay a debt as part of the agreement and does not do so, the lender can legally pursue either or both parties to collect the debt.

What cannot be covered in a separation agreement?

There is a limit to what a separation agreement can or cannot do. For example:

  • It cannot bind a third party such as a bank or other creditor (see above).
  • It cannot replace a restraining order should one party feel they need protection from the other.
  • It cannot bind the court to child custody, child support, or visitation terms as they may be modified at the court’s discretion if deemed in the best interest of the child involved.

We strongly suggest that one consult with an attorney before signing any separation agreement. It is important to read the proposed terms carefully and ask your attorney to review them thoroughly, as separation agreements are legally binding.

Still have questions about filing a separation agreement in NC?

The family law attorneys at Montgomery Family Law are ready to assist you in determining the best course of action given your unique situation. To schedule an appointment and learn more about our services, call us at (919) 816-9002.




How Social Media Can Affect Your Case

Social Media & Divorce

by Attorney Scott Montgomery

We’ve all heard cautionary tales of job seekers having been denied positions or promotions due to questionable online activity, including dubious pictures or postings. However, few of us consider the potential effect social media and digital communications can have on family law and divorce proceedings. A misguided Facebook post or tweet can have implications far beyond the immediate by creating unforeseen complications in your divorce settlement negotiations.

While communicating online can be fun and useful, choose the information you share very carefully. Not every one of your “friends” is really a friend and when a marriage dissolves; people tend to choose sides. The simplest interactions can be misinterpreted and skewed against you.

Divorce attorneys routinely scour social media when searching for evidence in support of their clients. In fact, a large majority of family law attorneys report that they have used information gained from social media to the benefit of their client against the other spouse. For example, I recently used the résumé information posted to LinkeIn by my client’s ex-husband to assist our own vocational expert in producing a report of the husband’s earning capacity that we used against him in court. This proved much easier and less expensive for my client than using discovery techniques available through the court process.

Suppress the Need to Share News – Good or Otherwise

Facebook posts and tweets can be deceptive. For example, an innocent picture taken on the ski slopes of Aspen Colorado may suggest that you should pay more spousal support than you really can afford. Even if this was only a one-time special trip, it could affect the judge’s opinion who is determining your ability to pay support.  A picture is worth a thousand words.

As another example, others may view a photo of you and a friend out on the town as evidence of an extramarital relationship, even if there was nothing of the sort.

Despite the fact that you’ve blocked your spouse from your social media account, word will get back to him or her.  This is the design of social networks – - – many eyes see your posts.

Remember, Your Posts Are Admissible In Court

Don’t let your emotions get the best of you. There is an immediacy to social media, lending itself to a more visceral interaction. We tend to say things in the heat of the moment that, given time for thought, we would choose not to share.

Posting negative information or comments regarding your spouse is never a good idea. If any are proven to be untrue, you may face a libel suit. Even if your comments are accurate, the courts generally discourage online sparring, particularly when child custody is involved.

Impromptu thoughts and comments could come back to haunt you. For example, if you are willing to post negative comments about the other parent online, in a forum visible to many people, the judge deciding custody of your child is much more likely to believe that you will speak negatively of the other parent in the presence of the child – - – this could easily hurt your child custody case.

If You Must Post, Follow a Few Simple Rules

The most effective way to ensure that social media does not damage your case is to stop using it all together – at least for the duration of the divorce proceedings. However, unless you want to find out firsthand how social media can affect your divorce, we suggest that you:

  • Change your privacy settings and block your soon to be ex. Your spouse’s attorney will likely be monitoring your social media accounts and will most certainly discover past comments, regardless of these changes. However, you’ll want to limit the damage as much as possible moving forward.
  • Assume that your spouse has access to your account, even if you are no longer “friends”  online.  Changing your privacy settings can help limit your online exposure. However, remember that even if you block your spouse from directly accessing your social media posts, all that it takes is one mutual friend or acquaintance that still has access to your posts to forward this information to your ex.
  • Do not post anything while angry or frustrated. Sit back and think carefully before you post anything. Consider how your post is likely to reflect on your character. Your spouse’s attorney and the court can read anything you post – and very well may. Assume that anything you post will be read by the judge presiding over your case.
  • Do not post anything you would be uncomfortable having your children read. Tweets and posts are forever. Should you act rashly, you could come to regret it years from now.
  • Avoid social sites that encourage flirting such as dating sites.  For example, if you have an online dating profile where you list yourself as not having any children, imagine how this could be turned against you by the other parent’s attorney in a child custody dispute. If you are seeking alimony, online evidence suggesting an extra-marital relationship existing prior to your date of separation could damage or destroy your claim for alimony.
  • If you must discuss your divorce, keep it off-line. Visit friends, talk on the telephone, or discuss your issues in a venue that provides some element of control over who is consuming your message. And remember – the walls have ears.

How Can Social Media Affect My Divorce

The safest and most effective way to avoid collateral damage from activity on Facebook, Twitter, Google+, Instagram, etc., is to abstain all together from using social media – at least until the divorce proceedings have concluded. Short of abstinence, try following the guidelines above and use extreme caution before posting any information about yourself, updates regarding your career, new purchases, or anything that could be skewed against you to affect your spousal support, child custody or child support case. We always advise our clients to be honest with the court. However, even the appearance of impropriety could damage your case. Do not paint yourself in a negative light.

Should You Have Any Doubt, Ask Your Attorney

Should you have any questions regarding the perceived impropriety of any social media interaction, contact your attorney before hitting the “send” button. Get his or her opinion before your spouse’s attorney provides one to you – one you don’t need or want to hear.  Contact Montgomery Family Law at (919) 816-9002 to speak with an experienced family law attorney equipped to answer your questions regarding divorce, spousal support and the ways in which social media can affect your divorce.

How Does Child Support Work in North Carolina?

Child Support

by Attorney Laura Esseesse

Both parents are responsible for providing child support in North Carolina. However, only the non-custodial parent must make support payments if this parent has less than 123 overnights per year with the child. In such cases, the custodial parent (the parent having more than 242 overnights with the child) is already assumed to be spending the required amount on the minor child directly. Payments typically continue until the child turns 18 or graduates from high school, whichever is last. Under no circumstances will child support continue beyond the minor’s 20th birthday.

In cases of shared physical custody, i.e., where each parent has at least 123 overnights with the child, child support is determined based on a formula that weighs the ratio of the parents’ incomes and the number of overnights that each parent has with the child.

How does child support work?

There are a number of key factors that determine the amount of one’s child support obligation.  These include, but are not limited to, the incomes of both parents, the number of children in need of support and the child custody arrangements. The calculation of one’s child support obligation is generally governed by the North Carolina Child Support Guidelines, published by the Conference of Chief District Court Judges (available on North Carolina’s Child Support Enforcement website). However, a court can deviate from this amount, should it find the child support amount to be inconsistent with the child’s needs or if it would otherwise be unjust or inappropriate. In actual practice, obtaining a deviation from the child support guidelines is typically quite difficult.

In addition to direct support payments to the other parent, a parent may also be obligated to contribute to child care costs and other expenses, including medical insurance coverage for the minor child.

When determining the amount of a child support obligation, the North Carolina Child Support guidelines consider income from any source, including (but not limited to) salary, bonuses and/or commissions, pension, or severance pay. Capital gains, annuity income, Social Security benefits, worker’s compensation income, alimony received from a former spouse, or even income attributable to the use of a company vehicle may also be used to determine the amount of child support due.

Income that may be excluded from the calculation of a child support obligation include support received for other children, food benefits, and other forms of general public assistance, just to name a few.

How do I calculate Child Support?

The state of North Carolina provides on-line worksheets to help determine the amount of support required by a parent. Custody issues must have been resolved, at least on a temporary basis, as the worksheets differ depending on the custody time arrangement that applies.

Can my child support amount be changed?

From time to time, the amount of child support as determined by these Guidelines may not meet the needs of the child.  If a parent wishes to change and modify the child support amount required, he or she can request a hearing with the assigned judge. The judge has the authority to adjust the amount of support up or down, depending on the evidence presented (and according to the Guidelines), so long as the judge is satisfied that a “substantial change” of circumstances has occurred since the entry of the existing order, i.e., the order that you are requesting to change. According to the North Carolina Child Support Guidelines, if the amount of child support ordered under the existing order is 15% different (more or less) than the suggested new amount, based on the changed incomes of the parties and/or relevant expenses of the child that may have changed, then the court will presume that the child support amount should be modified. In such case, the court will most likely change the child support amount ordered.     

How does child support work? At a time when you’re vulnerable both financially and emotionally, you need the advice of an experienced North Carolina attorney. At Montgomery Family Law, we’re ready to listen to your concerns, organize the crucial information, and help facilitate the best possible outcome for your unique situation. Call us today at (919) 816-9002 or use our contact form to arrange for an initial consultation.

For further assistance, please use the contact tab at the top of the page!


Understanding Post-Separation Support

Post-Separation Support

by Attorney Charles Montgomery

It costs more to run two households than it does to run one. It stands to reason that a dependent spouse may have problems making ends meet while going through the process of divorce. “Post-separation support” (temporary alimony) is a form of spousal support meant to bridge the gap between the time when one first separates from his or her spouse and obtaining long-term spousal support, called alimony.

What is post-separation support?

Post-separation support is temporary support awarded for a finite period of time, typically 12 months or until the time of the trial on alimony. Unlike the typical child support determination, the process through which post-separation support is determined can be quite subjective. Whereas the former is typically determined by a set formula based on incomes, the amount and duration of post-separation support is at the discretion of the court. While based primarily on financial grounds, a judge may also consider marital misconduct in determining the terms of post-separation support.

In North Carolina, spousal support is not intended to be punitive in nature but rather rehabilitative. When determining the terms of post-separation support (temporary alimony), an emphasis is placed on financial conditions as opposed to marital misconduct.

How can I get post-separation support?

Governed under the rules of statute NCGS § 50-16.2A, the following conditions must be met before an award of post-separation support will be granted:

  • The parties involved were lawfully married;
  • The party seeking support is a dependent spouse;
  • The party from whom support is sought is a supporting spouse;
  • The dependent spouse does not have the resources to meet his or her needs;
  • The supporting spouse has the ability to pay support.

If all of the above conditions are met, the court must award some amount of post-separation support; however, the amount is well within the discretion of the presiding judge. Further, the determination of what constitutes a “support spouse” and a “dependent spouse” is within the broad discretion of the judge, depending on the particular facts presented into evidence. Because post-separation support is temporary in nature, any such award is typically very difficult to appeal, as the North Carolina Court of Appeals in most cases considers such appeals “interlocutory” and not subject to being overturned.

For what period of time can I get post separation support?

While post-separation support (temporary alimony) typically runs until a predetermined period of time, the events below may trigger termination of post separation support payments:

  • The “dependent spouse” lands a job and is therefore able to meet his or her expenses;
  • The parties reconcile and resume a marital relationship;
  • The predetermined period of time elapses, typically 12 months or until the trial on alimony, whichever is sooner.

The divorce process can be confusing and needlessly stressful without the help of an experienced family law attorney. Not only is it important to have the support of friends, family, but also that of an experienced, knowledgeable divorce attorney. Charles H. Montgomery and Montgomery Family Law are there for those in need of wise counsel on matters of divorce and post-separation support, bringing a combined 45 years of family law experience for the benefit of our clients. To schedule an appointment to speak with one of our North Carolina family law attorneys, give us a call at (919) 816-9002.

For further assistance, please use the contact tab at the top of the page!