My Spouse And I Have Been Sleeping In Separate Bedrooms For Over a Year. Can I File For Divorce?

In Family, Home, We're Here to Help You by Jason Aycoth0 Comments

My spouse and I have been sleeping in separate bedrooms for over a year. Can I file for

divorce?  A great question for a Greensboro Family Law Attorney!

Potential clients often ask if it is possible to file for divorce after living in separate
bedrooms within the marital residence for over one year. In short, the answer is no.
The Greensboro Family Law Attorney’s at Garrett, Walker, Aycoth and Olson can tell you why.
In North Carolina, to be eligible to file for divorce under North Carolina General Statutes
Section 50-6, spouses must have lived separate and apart for at least one year and at least
one of the spouses must have resided in North Carolina for at least six months. North
Carolina appellate courts have interpreted the words “separate and apart” to mean that it
is necessary that the couple has lived in two separate residences with the intent of at least
one spouse to permanently cease the matrimonial cohabitation. Smith v. Smith, 151
N.C.App. 130, 564 S.E.2d 591 (2002). This separation and intent has to have existed for a
minimum of one year before either spouse can formally ask the court for a divorce. It is
important to bear in mind that a separation does not exist where “the parties have held
themselves out as husband and wife living together, nor when the association between
then has been of such character as to induce others who observe them to regard as living
together in the ordinary acceptation of that descriptive phrase.” Lin v. Lin, 108 N.C.App.
772, 425 S.E.2d 9 (1993), citing In re Estate of Adamee, 291 N.C. 386, 230 S.E.2d 541
(1976). Also, if the Court finds that at any point during the spouses’ alleged one-year
separation, the spouses resumed the marital relationship, the divorce will not be granted.
However, isolated incidents of sexual intercourse during the separation are alone not
enough to constitute a resumption of the marital relationship. If you are considering an
absolute divorce or have questions about your eligibility for an absolute divorce, it is
important to consult with a local family law attorney regarding the details of your
situation.
The experienced divorce lawyers of Garrett Walker Aycoth & Olson would be
happy to speak with you. Call our Greensboro law office today.

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