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FamilyAnswer, Lawyer
Category: Family Law
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Experience:  10 + years of handling Family Law, Divorce, Child Custody and Child Support cases
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I live in north carolina, my husband moved out of the house

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I live in north carolina, my husband moved out of the house to another state 2 years ago.

We have maintained two separate residences although he supports me and my child completely.

Do i still have to obtain the one year separation before starting the final divorce process

Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. I would be happy to answer your question but just want to make sure I understand your question/concern. Are you asking if the fact that he still supports you and your children would prevent the court from considering you separated for the required one year?

Customer: replied 4 years ago.
I am confused if the court would consider us separated for the one year requirement since we do not have a legal separation agreement, he does support us 100% and he has been back to visit our child and stayed in my house but we have not been in any married way.

Julie, thank you for that additional information. Separation in North Carolina occurs when a husband and wife move into separate residences with the intent to continue living apart from one another. Based on the fact that he has moved out of State and has lived there for two years along with an intent to end the marriage, would give you grounds to file. The fact that he returns to visit the child or supports you and them, would not prevent you from filing for divorce at this time.

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Customer: replied 4 years ago.
He has not taken any legal actions for divorce but it is clear between the two of us that the marriage is over. I think it had become easier to not get divorced and deal with the legal issues and just live apart. Although we still have all joint accounts. He never made an issue for separate checking, car insurance etc. My house has everything in both names, his residence in VA is in his name. We still have vehicles and credit cards together.

I have never worked outside the home in over 20 years.

He is retiresd from the military after 21 years, and now works for the department of the army.

He makes approximately $110,000 with his current job and $40,000 from retirement yearly. How does this affect me for support?

I have one 16 yr old child.

I just need out of the marriage to move forward in life. We are currently at 23 yrs of marriage

I certainly understand. Things which were acquired during the course of the marriage, would be considered marital assets and something which you could have a valid right and claim to, as well as debts that were accumulated. The court would likely award you alimony, based upon the length of the marriage and sacrifices you had made to care for the child and home, as well as other obligations, which you fulfilled. The court will look at the follow factors, when deciding the amount of alimony to award:

  1. The marital misconduct of either of the spouses,
  2. The relative earnings and earning capacity of the spouses,
  3. The ages and the physical, mental, and emotional conditions of the spouses,
  4. The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others,
  5. The duration of the marriage,
  6. The contribution by one spouse to the education, training, or increased earning power of the other spouse,
  7. The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child,
  8. The standard of living of the spouses established during the marriage,
  9. The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs,
  10. The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support,
  11. The property brought to the marriage by either spouse,
  12. The contribution of a spouse as homemaker,
  13. The relative needs of the spouses,
  14. The federal, state, and local tax ramifications of the alimony award, and
  15. Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper.

You have no obligation to wait for him to file and you can certainly do it and start the process, so move on with your life. While it may have been easier to live apart, there does come a time where you need to move on, as you stated above, receive what you are entitled to and get legally divorced from him. Please let me know if you have any other questions, I would be happy to answer them

FamilyAnswer and 3 other Family Law Specialists are ready to help you
Customer: replied 4 years ago.
One more clarification please.

My husband has been living in another state for 2 years.

He has returned to visit our child spent the night in the guest bedroom.

I have been told that by him spending the night nullified the separation time.
Not necessarily. The court is going to look at the overall circumstances. If he stayed in a separate room and was only there to see the kids along with no contact between the two of you it may not be an issue to prevent filing