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Lender & Creditor Issues

Separations & Divorces

What is legal separation?

Separation is not a divorce, and simply living apart may not constitute a legal separation. It is better to set forth all the terms and conditions of your separation rather than leave it to chance. 

Legal separation does not always end in divorce. A couple may reconcile, and they would not need to do anything in order to remain married. However, if they do not reconcile and wish to divorce after the legally required time period, they must file for divorce. 

In North Carolina, the law requires a legal separation period of one year before a couple may file for divorce. The date of the separation agreement is proof of the beginning date of the required one-year time period.  

North Carolina also offers a mediated separation, which is an alternative to traditional litigation. In this process, a mediator assists the spouses with communication and provides information and suggestions to help resolve differences. This may occur either before or after the divorce. 

What is divorce?

Divorce (or dissolution of marriage) is the legal ending of a marriage before the death of either spouse. A divorce is a legal action that must be certified by a court of law. If not addressed in the separation agreement, the terms of the divorce are determined by the court. The court will consider prenuptial or postnuptial agreements, plus any terms that the spouses have agreed on privately. 

What are the most common types of divorce?

1. At-fault: An at-fault divorce used to be the only way to dissolve a marriage, and couples who wanted to break their marriages only had the option to separate (and therefore were prevented from remarrying legally). North Carolina has adopted a no-fault divorce statute.

2. No-fault: A marriage partner does not need to show that the other marriage partner was at fault. Common reasons for no-fault divorce include incompatibility, irreconcilable differences, and irremediable breakdown of the marriage.

3. Uncontested divorce: Similar to no-fault divorces, uncontested divorces occur when the spouses can agree and present the court with a fair and equitable agreement. In this case, approval of the divorce is almost guaranteed. If the two parties cannot come to an agreement, they may ask the court to decide how to split property, deal with custody of children, etc.

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