After separation, many family law rights should be immediately asserted or else they may be lost or waived forever. Without a separation agreement or property settlement agreement, various rights and obligations may be unclear to the husband and wife, as well as to third parties. Occasionally, even with a separation agreement or property settlement agreement, a third party, such as a creditor or mistress, may not be bound to those terms. For example, even with a separation agreement in place, a spouse may still prosecute claims for alienation of affection and criminal conversation.
Once separated, either spouse can lose valuable property rights if they are not asserted on time. In North Carolina, an absolute divorce is easy to receive after a one-year period of separation. However, rights to alimony and equitable distribution will be deemed waived unless they are asserted prior to the entry of a divorce judgment.
Generally when a husband and wife separate, before a separation agreement is entered, either party can return to the marital home and resume cohabitation without excluding the other. This has slowly been losing favor in North Carolina. There are now domestic criminal trespass statutes that provide criminal penalties for a spouse that comes onto the property after separating and being forbidden from coming by the other spouse. Additionally, North Carolina courts have broad powers to grant possession of the residence to either spouse if it is determined that an act of domestic violence has been or may be committed.
If the parties separate due to unprovoked marital misconduct on the part of one spouse, the injured spouse may have a cause of action for divorce from bed and board. Prior to or at the time of separation, a spouse that is dependent on the other can file a action for post-separation support, alimony, and attorney fees. A spouse can also file for child custody and child support, without filing for divorce.
An important aspect to remember during separation is that either spouse has equal rights to the children until a custody agreement or court order is in place. Oftentimes, the custody and visitation rights are contentious and difficult to ascertain without an agreement in place. Either parent has the right to pursue a civil action to determine permanent custody. Having child custody and child support sorted out as soon as possible is always better for the children.
If you are considering separating from a spouse, it is very important to talk about the various implications with a lawyer. Having a clear idea of your rights and obligations can provide some stability and peace of mind during the difficult times that accompany separation.