What is Reconciliation? Will it Affect our Period of Separation?

In North Carolina, Reconciliation is the resumption of marital relations and voluntary renewal as husband and wife, which is judged by the totality of the circumstances. In the event that two spouses engage in isolated incidents of sexual intercourse, a court will not consider this to be a marital resumption that arises to the level of reconciliation. Yet, it has been held in North Carolina case law that if two separated spouses are holding themselves out to the public as husband and wife, even without sexual intercourse, reconciliation may occur.

In the event that two individuals do reconcile, the North Carolina statutory one year period of separation for a divorce will restart. Additionally, depending on the language placed in a Separation Agreement, reconciliation may have the ability to void a Separation Agreement in part or whole.

Furthermore, it is important to note that reconciliation will change the date of separation, which may have a dramatic effect on the value of an estate, especially with the current volatility of some retirement accounts that are held in stock portfolios.

The statutory definition, and what it excludes

In North Carolina, reconciliation is defined by statute rather than left to argument. G.S. 52-10.2 provides that “‘resumption of marital relations’ shall be defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances”, and adds that “isolated incidents of sexual intercourse between the parties shall not constitute resumption of marital relations.”

Two things follow from that wording. The test is the whole of the relationship rather than any single act, so evidence about finances, living arrangements, how the parties described themselves and how they were treated by others all bears on it. And the definition is deliberately two-sided: a resumption cannot be established by intercourse alone, but neither is intercourse required for a court to find one.

The one-year period starts again

In North Carolina, an absolute divorce under G.S. 50-6 requires that the spouses “have lived separate and apart for one year”. A resumption of marital relations breaks that period, and the year begins again from the new date of separation. The statute deals expressly with the narrower case: “Isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for divorce predicated on separation of one year.”

That distinction is the whole of the practical difficulty. A single incident does not disturb the period. A pattern of conduct that a court reads as a voluntary renewal of the marriage does, and the parties may not agree about which of the two occurred. Where the date of separation is disputed, it is proved on evidence like any other fact, and under G.S. 50-10 the material facts in a divorce complaint are deemed denied and must be found by a judge or a jury.

What reconciliation does to a separation agreement

In North Carolina, a separation agreement executed under G.S. 52-10.1 — in writing and acknowledged by both parties before a certifying officer as defined in G.S. 52-10(b), who must not be a party to the contract — is a contract, and reconciliation attacks its foundation. Under In re Estate of Adamee, 291 N.C. 386 (1976), reconciliation voids the executory provisions of a separation agreement, being those by which a party binds himself to do or not to do a particular thing in the future, on the reasoning that living separate and apart is an essential part of the consideration supporting the agreement.

Provisions already executed are treated differently. A transfer of property that has been completed generally stands, because there is nothing left to perform. The line between the two categories is not always obvious in a document that mixes a property settlement with continuing support obligations, and it is settled by construing the agreement rather than by its label.

Attempts to contract around this have not fared well. North Carolina appellate decisions applying Adamee have treated a provision purporting to keep an agreement in force notwithstanding a reconciliation as offending the public policy that favors reconciliation, on the reasoning that such a clause discourages the parties from attempting to save the marriage. Drafting alone therefore does not remove the risk.

Moving the date of separation moves the property case

In North Carolina, the date of separation is a boundary line in the equitable distribution statutes, not merely a milestone in the divorce. G.S. 50-20 defines marital property as property “acquired by either spouse or both spouses during the course of the marriage and before the date of the separation of the parties”, and separate property as property acquired before the marriage or by devise, descent or gift during it.

Valuation is tied to the same date. G.S. 50-21(b) provides that marital property is valued as of the date of separation, with pre-separation and post-separation occurrences or values competent as corroborative evidence of value, while divisible property and divisible debt are valued as of the date of distribution. A reconciliation that pushes the date of separation forward therefore reclassifies everything acquired in between and revalues the estate at a different moment — which can matter a great deal where a business, a retirement account or a share portfolio has moved in the interval.

Reconciliation, condonation and the support claims

In North Carolina, the alimony statutes fix their tests to the date of separation, so a later date enlarges the window of conduct the court may consider. G.S. 50-16.1A defines marital misconduct as acts occurring during the marriage and prior to or on the date of separation, and G.S. 50-16.3A(a) applies its mandatory rules to illicit sexual behavior in that same period.

Reconciliation also raises condonation, but only within limits. G.S. 50-16.3A(a) provides that any act of illicit sexual behavior by either party that has been condoned by the other party shall not be considered by the court. Resuming the marital relationship with knowledge of the conduct is the classic instance, so a reconciliation can remove from the case the very conduct that would otherwise have compelled an award or barred one. The exclusion is confined to illicit sexual behavior: the other categories of marital misconduct in G.S. 50-16.1A carry no statutory condonation bar and remain available to the court, though a reconciliation may bear on the weight given to them when the court exercises its discretion under G.S. 50-16.3A(b).

Postseparation support is affected in the same indirect way. G.S. 50-16.2A(d) directs the judge to consider marital misconduct by the dependent spouse occurring prior to or on the date of separation, and provides that when the judge considers those acts, the judge shall also consider any marital misconduct by the supporting spouse. Those questions sit alongside the need and ability-to-pay test in G.S. 50-16.2A(c) and the accustomed standard of living and related factors in subsection (b).

Living together is not the only way it is found

In North Carolina, because G.S. 52-10.2 asks about the totality of the circumstances, a court is not confined to whether the parties shared a residence. Holding themselves out publicly as husband and wife, resuming joint finances, taking family holidays together, attending events as a couple and describing the separation as over are all capable of supporting a finding of resumed marital relations.

The corollary is that conduct falling short of that will not. Contact about children, shared attendance at a child’s events, occasional meals and continued joint ownership of property are the ordinary incidents of a separation with children, and they do not by themselves renew the marriage. Because the test is one of totality, no single item on either list is decisive; it is the picture the evidence makes as a whole that the court is asked to find.

Common questions

Does one night together restart the one-year separation in North Carolina?

No. G.S. 50-6 provides that isolated incidents of sexual intercourse between the parties shall not toll the statutory period required for a divorce predicated on one year’s separation, and G.S. 52-10.2 excludes isolated incidents from the definition of resumption of marital relations. What restarts the period is a voluntary renewal of the husband and wife relationship judged on the totality of the circumstances.

Does reconciliation cancel a separation agreement?

It voids the executory provisions of one. Under In re Estate of Adamee, 291 N.C. 386 (1976), reconciliation voids provisions by which a party bound himself to do or not to do something in the future, because living separate and apart is part of the consideration for the agreement. Provisions already executed, such as a completed transfer of property, generally survive, and which is which is a matter of construing the document.

Who decides whether a couple reconciled?

The court, on evidence. G.S. 52-10.2 makes it a question of the totality of the circumstances, and under G.S. 50-10 the material facts in a divorce complaint are deemed denied by the defendant and must be found by a judge or a jury before judgment is entered. In a Charlotte case that is the District Court in Mecklenburg County, which under G.S. 7A-244 is the proper division.

Why does a changed date of separation matter beyond the divorce?

Because several statutes are keyed to it. G.S. 50-20 classifies as marital property what was acquired during the marriage and before the date of separation, G.S. 50-21(b) values marital property as of that date and divisible property and divisible debt as of the date of distribution, and G.S. 50-16.1A confines marital misconduct to acts during the marriage and prior to or on that date. Moving the date changes what is in the estate, what it is worth, and what conduct the court may weigh.

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.