Is it Okay to Date While I'm Separated From my Spouse?

Full question:

I filed a protective/restraining order against my husband that lasts for a year at which time in NC we will be considered separated for a year and able to divorce. Can I date during that year??

• Category: Divorce
• Date: 04/07/2025
• State: North Carolina

Answer:

Until a person is officially divorced, an sexual relations outside the marriage may be considered adultery, which may be considered marital misconduct in terms of alimony. It is also a crime under NC statutes. A bed and board divorce may be granted in North Carolina based upon adultery. It may also grant divorce based upon the parties living separate and apart for a period of one year without cohabitation. North Carolina law provides for a simplified divorce procedure as follows:

If the parties are seeking a divorce based upon the parties having lived separate and apart without cohabitation for a period of at least one year, and the parties have agreed to all terms of the divorce, leaving no issues to be decided by the court, the court may grant the divorce, finding all requisite facts from nontestimonial evidence presented by affidavit, verified motion or other verified pleading. It shall not be necessary to allege in the complaint that the grounds for divorce have existed for at least six months prior to the filing of the complaint.

A party seeking to obtain a divorce under this provision may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party may serve opposing affidavits at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require. For the purpose of this two-day requirement only, service shall mean personal delivery, facsimile transmission, or other means such that the party actually receives the affidavit within the required time. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. 50-10, G.S..1A-1, Rule 56

In North Carolina, proper venue for the divorce action is the Superior or District Court. The action should be filed in the county where either party resides. The party filing the action for divorce is the Plaintiff, while the other party to the action is referred to as the Defendant.

North Carolina is a so-called "equitable distribution" state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. While the trial court's discretion will not be disturbed on appeal without a showing of clear abuse, the court will consider the following factors:

1. The income, property, and liabilities of the parties;

2. Any obligation for support from a previous marriage;

3. The duration of the marriage and the age, physical and mental health of the parties;

4. The needs of the custodial parent;

5. The expectation of pension, retirement or other deferred compensation rights that are not marital property;

6. The contribution to the decation or earning potential of the other spouse; and,

7. Any other factor the court deems just and proper.

The following are NC statutes:

§ 50-6. Divorce after separation of one year on application of either
party.

Marriages may be dissolved and the parties thereto divorced from the
bonds of matrimony on the application of either party, if and when the
husband and wife have lived separate and apart for one year, and the
plaintiff or defendant in the suit for divorce has resided in the State
for a period of six months. A divorce under this section shall not be
barred to either party by any defense or plea based upon any provision of
G.S. 50-7, a plea of res judicata, or a plea of recrimination.
Notwithstanding the provisions of G.S. 50-11, or of the common law, a
divorce under this section shall not affect the rights of a dependent
spouse with respect to alimony which have been asserted in the action or
any other pending action.

 

Whether there has been a resumption of marital relations during the
period of separation shall be determined pursuant to G.S. 52-10.2.
Isolated incidents of sexual intercourse between the parties shall not
toll the statutory period required for divorce predicated on separation
of one year.

§ 50-7. Grounds for divorce from bed and board.

The court may grant divorces from bed and board on
application of the party injured, made as by law provided,
in the following cases if either party:

(1) Abandons his or her family

(2) Maliciously turns the other out of doors.

(3) By cruel or barbarous treatment endangers the life of
the other. In addition, the court may grant the victim of
such treatment the remedies available under G.S. 50B-1, et
seq.

(4) Offers such indignities to the person of the other as to
render his or her condition intolerable and life burdensome.

(5) Becomes an excessive user of alcohol or drugs so as to
render the condition of the other spouse intolerable and the
life of that spouse burdensome.

(6) Commits adultery.

§ 31A-1. Acts barring rights of spouse.

(a) The following persons shall lose the rights specified in
subsection (b) of this section:

(1) A spouse from whom or by whom an absolute divorce or marriage
annulment has been obtained or from whom a divorce from bed and board has
been obtained; or

(2) A spouse who voluntarily separates from the other spouse and lives
in adultery and such has not been condoned; or

(3) A spouse who wilfully and without just cause abandons and refuses
to live with the other spouse and is not living with the other spouse at
the time of such spouse's death; or

(4) A spouse who obtains a divorce the validity of which is not
recognized under the laws of this State; or

(5) A spouse who knowingly contracts a bigamous marriage.

(b) The rights lost as specified in subsection (a) of this
section shall be as follows:

(1) All rights of intestate succession in the estate of the other
spouse;

(2) All right to claim or succeed to a homestead in the real property
of the other spouse;

(3) All right to petition for an elective share of the estate of the
other spouse and take either the elective intestate share provided or the
life interest in lieu thereof;

(4) All right to any year's allowance in the personal property of the
other spouse;

(5) All right to administer the estate of the other spouse; and

(6) Any rights or interests in the property of the other spouse which
by a settlement before or after marriage were settled upon the offending
spouse solely in consideration of the marriage.

(c) Any act specified in subsection (a) of this section may be pleaded
in bar of any action or proceeding for the recovery of such rights,
interests or estate as set forth in subsection (b) of this section.

(d) The spouse not at fault may sell and convey his or her real and
personal property without the joinder of the other spouse, and thereby bar
the other spouse of all right, title and interest therein in the
following instances:

(1) During the continuance of a separation arising from a divorce from
bed and board as specified in subsection (a)(1) of this section, or

(2) During the continuance of a separation arising from adultery as
specified in subsection (a)(2) of this section, or during the continuance
of a separation arising from an abandonment as specified in
subsection (a)(3) of this section, or

(3) When a divorce is granted as specified in subsection (a)(4) of this
section, or a bigamous marriage contracted as specified in
subsection (a)(5) of this section.

§ 14-184. Fornication and adultery.

If any man and woman, not being married to each other, shall
lewdly and lasciviously associate, bed and cohabit together,
they shall be guilty of a Class 2 misdemeanor: Provided, that
the admissions or confessions of one shall not be received in
evidence against the other.