Jan72026
Family Law Q&A Series

Can I file for separation or divorce if my spouse and I are still living in the same home? – North Carolina

Short Answer

In North Carolina, an absolute divorce based on “one-year separation” generally requires spouses to live in separate residences for at least one year. Living in the same home usually does not count as living “separate and apart,” even if the spouses sleep in different rooms. However, a spouse may be able to file a fault-based court action called “divorce from bed and board” while still living together, if one of the specific statutory grounds applies.

Understanding the Problem

Under North Carolina family law, can a spouse start a separation or divorce case when both spouses still share the same home? The key decision point is whether North Carolina law treats the situation as a legal “separation” for purposes of an absolute divorce, or whether a different court remedy is needed while the spouses remain under one roof.

Apply the Law

North Carolina does not have a single court filing called “legal separation” that automatically changes marital status. Instead, most people either (1) live separate and apart long enough to qualify for an absolute divorce, and/or (2) use a written separation agreement to set rules while separated. For an absolute divorce based on separation, North Carolina requires that spouses live “separate and apart” for one year, and that at least one spouse has lived in North Carolina for six months before filing. If spouses are still living together, a different claim—divorce from bed and board—may be available in limited, fault-based situations.

Key Requirements

  • Separate residences (for a no-fault absolute divorce): For the common one-year separation divorce, spouses generally must live in different homes for at least one continuous year.
  • Intent to remain separated: At least one spouse must intend the separation to be ongoing (not a temporary break) during the separation period.
  • Fault grounds (for divorce from bed and board while still in the home): If spouses still live together, a court-ordered “judicial separation” may be possible only if one spouse proves one of the specific statutory grounds (such as abandonment, being turned out of the home, cruelty, indignities, substance abuse making life intolerable, or adultery).

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts indicate a spouse wants to pursue separation and divorce in North Carolina. If both spouses are still living in the same home, the usual one-year separation path to absolute divorce typically cannot start running yet because North Carolina generally requires living in separate residences. If immediate court involvement is needed while still in the home, the question becomes whether facts exist that fit one of the fault grounds for divorce from bed and board.

Process & Timing

  1. Who files: Either spouse. Where: North Carolina District Court (filed through the Clerk of Superior Court in the county where either spouse resides). What: A complaint for absolute divorce (if eligible) and/or a complaint for divorce from bed and board (if a fault ground applies). When: For a no-fault absolute divorce, filing typically happens after the spouses have lived separate and apart for one full year and at least one spouse has lived in North Carolina for six months.
  2. Service and response: The other spouse must be served with the lawsuit. The case timing can vary by county and by whether the other spouse contests the claims.
  3. Judgment: If the requirements are met and paperwork is in order, the court can enter a judgment (an absolute divorce ends the marriage; a divorce from bed and board does not end the marriage but can create a court-ordered separation).

Exceptions & Pitfalls

  • Same-house living usually does not count: Simply sleeping in separate rooms or stopping marital relations while staying under the same roof usually will not satisfy the “separate and apart” requirement for the one-year divorce.
  • Divorce from bed and board is not “no-fault”: It requires proof of one of the statutory grounds, and the filing spouse generally must be the “injured” spouse.
  • Paperwork and timing can affect other rights: In many cases, it is important to address support and property issues before an absolute divorce is finalized, because the timing of filings can affect what claims remain available.

Conclusion

In North Carolina, spouses usually cannot get an absolute divorce based on one-year separation while still living in the same home, because the law generally requires living separate and apart in separate residences for at least one year. If spouses still share a home but a serious fault ground exists, a divorce from bed and board may be an option to seek a court-ordered separation. The next step is to confirm whether a qualifying separation date can start (or has started) and, if not, whether a fault-based filing is appropriate.

Talk to a Family Law Attorney

If a separation or divorce is being considered but both spouses are still living in the same home, it is important to understand what counts as “separate and apart” in North Carolina and what court options may exist in the meantime. Our firm has experienced attorneys who can help explain options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Family Law Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.