I agree with Mr Kelso. The key is to live separate and apart with no intention to resume the marriage for a year. Make sure you know when he will get out. If he gets out and moves back in with you, it can affect the year calculation.
You must live separate and apart for one year with the intent to be permanently separated. No papers required.
No attorney-client relationship is created by this response. Always see an attorney in person to create an attorney-client relationship. The author of this opinion is licensed only in the states of NC, SC and TN.
I agree with the previous answers, however, your husband's being incarcerated did not necessarily start the clock on a separation. You specifically state that you are separated "due to him being incarcerated for domestic violence." His being arrested and taken off to jail does not equate to moving out with the intention of remaining separate and apart. He may have every intention of coming back to live with you. If you want to draw a line in the sand with respect to being separated, I would suggest you drop him a letter stating in no uncertain terms that he is not welcome back when he gets out and that your intention is to seek a divorce. Write the date on that letter nice and big and keep a copy for your records.
Fred Amos provides legal representation in Wake County , North Carolina. Any answer provided through this discussion board is a general response to the question and NOT intended as legal advice. Responding to this question does not constitute an attorney-client relationship. Always seek the advice of a lawyer directly to address your specific circumstances.
You must live separate and apart for one year with the intent to remain separate and apart. After the year, you can file for divorce. It is imperative that you tell your estranged husband of your intent and desire to end the marriage, like Mr. Amos suggested.