Equitable Distribution and Date of Separation

Salvadore v. Salvadore, 2021-NCCOA-680 (2021 unpublished)

• Facts: Wife and Husband married in 1989. During their marriage, Husband would frequently change his job. Husband had a peculiar habit every time he changed jobs that required relocation to another state. He would stay in hotels and campgrounds in the new state while Wife would stay at the marital residence at the old state. Husband would also regularly return to the marital residence on weekends. This would continue until the couple bought a new home in the new state. When Husband accepted a new job in New York, he continued this habit. However, before he left, he asked for a separation on April 17, 2017. But true to habit, he stayed in hotels in campgrounds in New York, while returning to the marital residence in North Carolina on weekends. This happened until July 16, 2017—the last night he spent in the marital residence with Wife. As part of his appeal of an equitable distribution order, he argued that the date of separation should have been April 2017, not the July 2017 date.

 

• Issue:
  Did the trial court err by finding that the date of separation was July 16, 2017?

 

• Holding:

 

• Rationale:

   

  The law defines a separation as “living separately and apart from each other, the complete cessation of cohabitation.” So, as part of separation in North Carolina, the parties must not continue to live under one roof, even if the parties have agreed that they are separated. In this case, Husband continued his habit of returning to the marital home on weekends until July 16, 2017. The fact that his staying in hotels and campgrounds, only to return to the home on weekends, was a habit also supported that Husband and Wife had not separated until he left the marital residence for good. In North Carolina, it is the appearance of husband and wife that may ultimately control and, by living together, they held out appearances that they were such.

Note: Republished from December 2021.