Smith v. Smith
564 S.E.2d 591, 2002 N.C. App. LEXIS 676, 151 N.C. App. 130 (2002)
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Rule of Law:
For a divorce based on a one-year separation, it is sufficient that at least one spouse has the intent to cease marital cohabitation, even if the other spouse is unaware of this intent.
Facts:
- Plaintiff and defendant were married in 1986 and had one child.
- The couple began having marital difficulties in 1996 and ended their sexual relationship in October 1998.
- In December 1998, the plaintiff moved out of the master bedroom into a guest room within the marital home.
- On January 21, 1999, the plaintiff moved from the family's home in Florida to North Carolina for business reasons, telling his child and niece of his intent to separate, but not the defendant.
- While physically separated, the parties jointly purchased a house in North Carolina, to which the defendant and their child moved in July 1999.
- Plaintiff never moved into the new North Carolina home with his family nor resumed a marital relationship with the defendant.
- The defendant first learned of the plaintiff's intention to end the marriage in September 1999.
Procedural Posture:
- Plaintiff filed a complaint for absolute divorce in the trial court, alleging a separation date of January 21, 1999.
- Defendant filed an answer, a motion to dismiss, and a counterclaim, arguing the true separation date was September 1999.
- The trial court entered a judgment granting the divorce, finding that the separation legally began in January 1999 with the plaintiff's intent, even though the defendant was unaware.
- The defendant (appellant) appealed the trial court's judgment to the North Carolina Court of Appeals.
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Issue:
Does the statutory requirement of living 'separate and apart' for one year to obtain a divorce require that the intent to separate be known by both spouses, or is the unilateral, uncommunicated intent of one spouse sufficient?
Opinions:
Majority - Campbell, Judge
No. The unilateral, uncommunicated intent of one spouse is sufficient to begin the one-year separation period for a divorce. The court reasoned that the controlling statute, N.C. Gen. Stat. § 50-6, requires only that the parties have 'lived separate and apart for one year.' Citing precedent such as Earles v. Earles, the court affirmed that 'separate and apart' is defined by two elements: a physical separation and an intention by at least one party to cease marital cohabitation. The court found no precedent requiring that the other spouse must have knowledge of this intent. Because the plaintiff physically separated on January 21, 1999, with the subjective intent to end the marriage, the statutory requirements for divorce were met one year later, regardless of when the defendant became aware of his intent.
Analysis:
This decision solidifies the legal standard for separation in North Carolina, establishing that the one-year period can begin based on one party's secret intent. It prioritizes the subjective state of mind of the separating spouse over the objective understanding between the couple. This ruling significantly impacts divorce litigation by setting the start of the separation period at the moment of physical separation combined with one party's uncommunicated intent, potentially creating situations where one spouse is unaware that the legal clock for a divorce has begun to run.
