Sleeping in Separate Bedrooms Does not Create a Legal Separation

I am often amazed at the clients who tell me they are “separated” from their spouse only to learn that they continue to live in the same house.  But they are wrong!  To be separated in North Carolina, you must live separate and apart and either husband or wife must form the intent to no longer live as husband and wife.  Both factors are important.  By living separate and apart the couple shows unto the world that they are separated.  However, were it not for the intent requirement, every married person who travels for work or is overseas serving in the US military would be legally separated.  Therefore, both factors are important.

Living in the same house cannot be “separate and apart.”  In Richardson v. Richardson, 257 N.C. 705, 709, 127 S.E.2d 525, 528 (1962), the North Carolina Supreme Court found that even though husband and wife had become estranged, they were not legally separated because they continued to live under the same roof.  The North Carolina Court of Appeals has stated that “separation, as this word is used in the divorce statutes, implies living apart for the entire period in such manner that those who come in contact with them may see that the husband and wife are not living together.” Ponder v. Ponder, 32 N.C. App. 150, 153, 230 S.E.2d 786, 788 (1977).

The North Carolina Supreme Court has also found that even when husband and wife had lived in separate rooms for five years and had discontinued all sexual relations for more than two years, they were not legally separated.  See Dudley v. Dudley, 225 N.C. 83, 85, 33 S.E.2d 489, 490 (1945). Cessation of sexual relations does not alone constitute a separation. Lin v. Lin, 108 N.C. App. 772, 775, 425 S.E.2d 9, 11 (1993).  In fact, after the parties do separate, “isolated incidents of sexual intercourse” do not constitute a reconciliation such that the one year waiting period has to start over. And this makes sense because the public policy of North Carolina dictates that we want people to stay married and if they can’t date for the purpose of trying to reconcile, it would discourage attempts at reconciliation.

It has long been established in North Carolina that a married couple living in the same house and holding themselves out as man and wife cannot be deemed to have separated.  Oakley v. Oakley, 54 N.C. App. 161, 162, 282 S.E.2d 589, 590 (1981).

In one unpublished case, after the parties actually separated by living separate and apart, a husband was allowed to move into a separate apartment that was locked off from the rest of the house and the Court did not find that this constituted a separation.  See Lange v. Lange, 164 N.C.App. 779, 596 S.E.2d 905 (2004).  It is my opinion, however, that the Court upheld this arrangement because the husband had lived away from the house for a period of time before he returned to live in the apartment.

In conclusion, to be legally separated in North Carolina, you can’t live in the same house.  You must live under different roofs and one of you must form the intent to no longer live as husband and wife.