Wen Chouh Lin v. Lin
108 N.C. App. 772, 1993 N.C. App. LEXIS 180, 425 S.E.2d 9 (1993)
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Rule of Law:
Living 'separate and apart' for the purposes of divorce and alimony requires more than the cessation of sexual relations or residing in different dwellings; it requires a cessation of cohabitation in a manner that makes it apparent to the community that the parties are no longer living together as husband and wife.
Facts:
- A husband and wife, married in 1964, lived with their children in one apartment until 1978.
- In 1979, the family rented an adjacent apartment with a common porch; the wife moved into the new apartment while the husband remained in the original one.
- The parties ceased having sexual relations in May of 1979.
- From 1979 to 1990, the family functioned as a single unit across both apartments: the wife cooked meals for the family (usually in the husband's apartment), did the family laundry, and the children moved freely between both spaces.
- During this period, the parties shared a phone number, mailbox, joint credit cards (until 1987), and a joint checking account (until 1983).
- The husband continued to pay the wife's rent, utilities, automobile and health insurance, and other expenses.
- In September 1990, just as the wife was about to undergo major surgery, the husband moved to a different apartment in the same complex and ceased all financial support for her.
- The wife testified she never consented to the living arrangement being a separation, believing it was to accommodate their growing children.
Procedural Posture:
- The plaintiff-husband filed a complaint for absolute divorce in a North Carolina trial court on November 13, 1990.
- The case was tried before a judge without a jury (a bench trial).
- The trial court held that the parties' legal separation occurred in September 1990 when the husband moved out and that his actions constituted abandonment.
- Based on this finding, the trial court ruled that the defendant-wife was entitled to alimony.
- The plaintiff-husband (appellant) appealed the trial court's judgment to the North Carolina Court of Appeals, arguing the separation began in 1979.
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Issue:
Does a married couple live 'separate andapart' for the purposes of establishing a legal separation date when they occupy adjacent apartments and cease sexual relations, but continue to share meals, finances, domestic duties, and present themselves to the public as a family unit?
Opinions:
Majority - Lewis, Judge
No, a married couple does not live 'separate and apart' under these circumstances. A legal separation requires more than occupying separate physical spaces; it is determined by whether the parties have ceased holding themselves out to the community as a married couple living together. The court reasoned that despite the separate apartments and cessation of sexual relations, the parties' lives remained deeply intertwined. They continued to share meals, finances, domestic responsibilities, and social activities, which led the court to conclude they were living together 'in the usually accepted sense' until 1990. Citing Dudley v. Dudley, the court emphasized that separation 'implies the living apart for such period in such a manner that those in the neighborhood may see that the husband and wife are not living together.' The husband's move to a different apartment and complete cessation of support in 1990, without the wife's consent or legal justification, constituted abandonment.
Analysis:
This decision clarifies that the legal standard for 'living separate and apart' is a functional, totality-of-the-circumstances test, not a purely geographical one. It establishes that courts will look beyond the physical living arrangements to the actual nature of the couple's relationship, including financial interdependence and public presentation. The ruling makes it more difficult for a spouse to retroactively claim an early separation date to avoid financial obligations like alimony if they continued to function as a married couple in most respects. This case serves as a key precedent for disputes where the line between cohabitation and separation is ambiguous.
