How the Date of Separation (DOS) is Determined and Why it is so Important
The date of separation is an important date that establishes the date that spouses began residing in separate locations from each other with an intent to permanently separate. Under North Carolina law spouses must be separated from one another for at least one year and a day before the court will grant an absolute divorce.
What is a Separation?
A valid separation requires spouses to reside in two physically separate residences with at least one spouse having the intent that the separation be permanent. Living in separate bedrooms or different parts of a house does not qualify as a separation. There may be some exceptions to this rule in cases where a residence has two distinct unconnected living areas. But, one should consult with a knowledgeable family law attorney before taking any action to ensure that it will be recognized as a valid separation.
What Needs to be Filed for a Separation?
There are no requirements that anything be filed with the court for a separation to be valid. However, most couples choose to resolve their pending issues through a legally binding separation agreement that addresses issues of equitable distribution of property, and sometimes child custody and support.
When resolving equitable distribution issues the date of separation plays a critical role. Prior to seeking an equitable distribution through the court, spouses must be legally separated. In addition, the values or balances of assets and debts are essentially “frozen” as of the date of separation. Any property owned, or liability owed, on the date of separation will be presumed to be marital and subject to division between the parties in an equitable distribution. As part of the equitable distribution process assets will be valued as of the date of separation.
Can a Court Force a Separation?
In some situations, it is possible for a court to order a separation. This is done when one party makes a request for a “divorce from bed and board”. Even though it is called a “divorce from bed and board” it is a separation and not a divorce. An absolute divorce will not be granted until spouses have been separated for at least one year and one day. While allegations for a divorce from bed and board can be made in a pleading when necessary, spouses generally separate from one another on their own accord, and a hearing on the issue is not required or pursued.
What if We Reconciled with One Another?
At times spouses have different opinions as to what the date of separation might be. When a marital relationship is resumed after a period of separation it may require a new date of separation to be re-established. However, isolated incidents of sexual intercourse between parties will generally not toll the separation initially established. Only a voluntary reconciliation of the marital relationship between spouses will cause the period to restart. If you have questions about your separation period you should consult with a family law attorney to provide you with knowledgeable advice about your specific situation.
If you are currently separated or contemplating a separation, you should seek the advice of an experienced family law attorney to help you navigate the delicate intricacies of divorce. Our attorneys at Hopper Cummings, PLLC have over 30 years of experience in helping our clients efficiently resolve issues in all areas of family law, including separation and divorce, custody, support, and equitable distribution. For a confidential consultation with one of our attorneys, call us today at 919- 553-4115, or complete our online form.
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