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In North Carolina, adultery can be used as a basis for divorce. One may ask, what are the possible legal implications for a spouse who chooses to date after a legal separation? North Carolina used to consider adultery as a class 2 misdemeanor, and opened people up to criminal prosecution. Provided, that the admissions or confessions of one shall not be received in evidence against the other. However, adultery in a marriage can lead to some less than favorable results for an adulterous spouse. Proof of adultery by one spouse in a marriage can affect the alimony the adulterous spouse has to pay to the innocent spouse after a divorce is finalized.
Alimony payments are payments made by one spouse to the other dependent spouse after the two are legally divorced. Alimony payments occur when one spouse is financially dependent on the other spouse during the duration of the marriage and the court determines, after considering all relevant factors, that it would be fair and just for the supporting spouse to pay for the support and care of the dependent spouse. One factor that courts use to determine whether the supporting spouse should pay the dependent spouse alimony is whether the supporting spouse committed adultery during the duration of the marriage.
Once the spouses are legally considered separated, North Carolina law would not consider extra-marital relationships as a factor to show the need for alimony payments.
The court may look at post-date of separation relationships as evidence that either spouse committed adultery prior to the marriage. The post-separation relationship with a third-party does not directly affect alimony amounts, but it could lead the court to believe that there was an extra-marital affair that took place prior to the separation, which would affect the alimony amount. Through criminal conversation, the spouse of the adulterer has the option to sue the extra-marital lover for monetary damages.
A criminal conversation claim may only be brought against a third-party individual to the marriage and cannot be brought against a business entity. Can dating a spouse who is legally separated lead to a lawsuit for criminal conversation? The North Carolina Court of Appeals held in that a claim for criminal conversation against a third-party paramour is not barred by the fact that the spouses are legally separated.
The court stated in Johnson v. Pearce, criminal conversation is based on the fact that the parties are married at the time and is based on the policy that spouses have the legal right to exclusive sexual intercourse with each other even if they are legally separated. What defenses are available for a third-party paramour for criminal conversation?
In order to qualify for a divorce in North Carolina , a legal separation for at least one year is necessary. It is not necessary that both spouses intended for the separation to become permanent, the intent of one spouse is sufficient to satisfy the requirements of North Carolina law to obtain a divorce.
However, if one spouse moves out and the understanding by both is that the separation is temporary, then the one year separation period has not started until one spouse decides that the separation is permanent. You do not need a separation agreement nor must you file any paperwork in the court system to prove that you are separated from your spouse.
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When the time comes to apply for a divorce, you will state under oath that you have been separated from your spouse for at least one year, and provided that your spouse does not dispute the separation, then that is enough. In the rare instance where one spouse makes an appearance in court and contests the date of separation, it may become necessary to offer additional physical evidence to prove the date you separated.
Sometimes the date of separation can have a huge impact on other aspects of your case, such as the valuation of property for purposes of equitable distribution , or the amount or duration of alimony. If you are in a situation where the date of separation might be contested, you should talk to a divorce lawyer to discuss how best to proceed and map out a legal strategy to put you in the best possible situation for your case. If you are confused about what it means to be legally separated in North Carolina, or what the impact of a legal separation is, you should talk to a lawyer about your case.
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- Legal Implications for a Spouse Who Chooses to Date After Separation.
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There are several common mistakes that people make about legal separation in NC. The answer is an emphatic NO. First and foremost, good luck finding a lawyer that would be willing to file that lawsuit for you.
I doubt you would find one willing to risk their law license just so you can get divorced a couple months early. Second, even if you were able to handle the divorce on your own and get a judge to give you your divorce, you would only be able to obtain it by lying in court which is perjury and a criminal offense.source
TRAN LAW FIRM Legal Implications for a Spouse Who Chooses to Date After Separation - TRAN LAW FIRM
Finally, all that aside, your divorce judgment would not be worth the paper it was written on. It is an invalid divorce because the Court never had jurisdiction to enter the divorce in the first place. So if your spouse ever got really mad at you and wanted to make your life hell, they could re-litigate your entire case all over again at anytime in the future. Do you really want to live with that your entire life? And if you decided to get remarried, now you would be committing bigamy, also a crime in many states.
To be legally separated in North Carolina, one of the spouses must physically move out of the residence into a separate residence under a separate roof somewhere else. They must have a new address entirely that is separate and apart from the marital residence. A rarely used exception to this would be if the home was partitioned and divided into two separate and distinct living areas with completely separate addresses, such as would be the case if the home was a duplex. In this situation, they would be living under the same roof but have their own residence.
North Carolina is one of a handful of states that allow a divorcing couple to create an agreement that resolves all aspects of their case and keep that agreement completely private. Some of the issues that can be resolved in a separation agreement include:. Many of our clients prefer to keep all of these very private issues out of the court system and the public eye. A separation agreement can help them to accomplish this. However, a separation agreement is an important legal document and when you sign it you are giving up some potentially valuable legal rights.
We highly recommend that you contact a Divorce Lawyer to, at the very least, go over your draft agreement with you and make sure that you have not missed any important issues and that the agreement properly states what you want to happen. There are various legal requirement for a separation agreement to be valid, most importantly that the document be signed and notarized by both spouses.
In addition, you must be separated, or intend to separate, for a separation agreement to be enforceable. Many people grossly underestimate the importance of negotiating a separation agreement and property settlement outside of court. As mentioned before, the purpose of this agreement is settle all issues related to your divorce without the need to file a lawsuit and have a judge decide these issues.
By voluntarily agreeing to resolve these issues out of court, you can substantially reduce the overall legal cost related to your divorce. Taking these matters to court, or litigating them , can run into the tens of thousands of dollars, versus having a lawyer draft up an uncontested separation agreement which will cost a couple thousand dollars. In addition, an uncontested separation agreement gives you much more control over the process than giving these issues to a judge to decide.
And even in those cases, many will resolve on the day of the hearing as one or both parties start to become nervous about the prospect of letting a man or woman in a black robe decide their fate. If you can shortcut this entire process by resolving your case out of court, it will give you much more control over how your case is handled.
Legal Separation in NC – The Ultimate Guide
Finally, we should point out that the financial cost of litigation is only one part of the equation. The emotional cost of litigating a contentious divorce can rip at families for years, especially where there are small children involved. You can avoid all of this heartache and stress by agreeing to negotiate and enter into a separation agreement outside of court. Many reasonable people would love to enter into a legally binding separation agreement.
You may be one of them. Here are some of the warning signs that indicate when it may be a waste of time to negotiate a legal separation agreement:. All of these situations can create a toxic environment in a marital residence. However, due to the actions of one spouse acting unreasonable, hateful or in a threatening manner, getting the courts involved becomes necessary.