How do you get your spouse out of the house if you want a divorce? To ask it another way, is it possible for a married person to force their spouse to leave the marital residence if they refuse? What if both of you want to separate but cannot agree on who is moving out? The short answer is yes, you can force a Spouse to leave the marital residence, but you had better keep reading because it is only possible under certain circumstances.
I cannot begin to count the number of times clients have asked me this question in my fourteen years as a Raleigh Divorce Lawyer. The fact is North Carolina Divorce Law as written does not provide any mechanism to force a “no fault” separation or disposition of a marital residence prior to separation. No fault allegations are required (or allowed) in obtaining an actual divorce in North Carolina, however you cannot even make a claim for a divorce until you have been separated for a year. But what if you cannot establish a real separation because your spouse will not leave? In essence the general rule from the laws perspective is that if you want to separate from your spouse just because you are unhappy or no longer want to be married, you leave. As any good divorce attorney will tell you however, hold that thought until we talk about it. Leaving without taking legal actions to protect yourself is almost always a very bad idea.
North Carolina Divorce Law was created with the intent of establishing uniform rules, processes and procedures to determine how married couples can resolve all of their martial issues in the event of separation and divorce. Most of North Carolina’s Divorce Laws are predicated upon the parties having already separated. In fact, you cannot file a claim for Equitable Distribution (the division of property) in most cases in North Carolina until you are physically separated. North Carolina law in general favors marriage, and that is one reason North Carolina has a twelve month separation requirement prior to any party being able to file for divorce. Courts do not wish to force a married person to leave the marital home, thereby creating a separation without a very good reason. The inability of couples wishing to separate to agree on who is going to leave is not a legally sufficient justification for a Court to intervene.
So how can you force a spouse to leave the marital home?
- Negotiate an Enforceable Agreement. While not exactly “forcing” your spouse to leave the marital residence, negotiating a settlement to marital issues is preferable to litigation if you can get the result you want. With the assistance of your divorce lawyer, you can negotiate a settlement in the form of a contract or court order (consent order) that requires your spouse to leave the marital residence within a certain time frame. If you have not had any luck trying to talk your spouse into leaving on your own, try consulting with a divorce attorney to assist you by making written demands or threatening a lawsuit. The key is to obtain an enforceable agreement that your spouse is vacating the marital residence within a specified time.
- Equitable Distribution-Moving out hoping to get back in. You always have the option of moving out of the marital home and filing an action for Equitable Distribution wherein you ask the Court to distribute the marital residence back to you at a later date. It would be a form of delayed gratification, but it can work. In a claim for Equitable Distribution, the Court can and will order exclusive possession of the residence to one party or the other, so you could achieve your ultimate goal. The down side is you can cause problems for yourself by moving out without a formal Non-Abandonment Agreement or other legal sufficient protections. You may be accused of abandoning the marriage or prejudice your marital claims in other ways. ALWAYS consult a family law attorney prior to moving out unless your safety is at risk. Second there is no guarantee that the Court will ever order possession of the home returned to you. In fact, the practical consequences of moving out can increase the likelihood that the home will remain with your spouse. Finally, it could take many months to have a hearing on Equitable Distribution. Do not expect quick resolution. For this and other reasons, unilaterally moving out is inadvisable in most cases without proper planning and consultation with your divorce attorney to minimize any risk or potential negative consequences.
- Domestic Violence. Pursuant to NCGS 50-B, a married person can seek a domestic violence protective order if one party commits an act of domestic violence against the other. “Domestic Violence” is broadly defined to include not only assaults or threats, but also harassment. The Court is authorized to award temporary possession of the marital residence in a protective order. If the order is entered “ex parte” (emergent without the other party present), then a return hearing must be held within 10 days of the entry of the order. If the Court finds that an act of domestic violence did occur at that ten day hearing and continues the order in place (typically for 12 months), the Court may again award temporary possession of the marital home. This is not a permanent resolution of “who gets the house” however, as either party may then file an action for Equitable Distribution and the Court may distribute the home differently and will have the authority to nullify any award of property in the Domestic Violence Order. Obtaining immediate physical possession of the marital residence can be a benefit of filing a Motion for a Domestic Violence Protective Order, however it is not the intent or purpose. If you have been the victim of an act or acts of domestic violence and/or are in fear for your safety, you should immediately seek a protective order, however seeking a protective order based upon false or exaggerated claims in order to get possession of a home is unlawful and an abuse of the process.
- Divorce From Bed and Board. If after you have consulted with your divorce lawyer it is determined that there is no domestic violence, you do not wish to move out, and negotiation has failed, Divorce From Bed and Board is your best and only remedy. Divorce From Bed and Board is a civil claim that one spouse may file against the other prior to separation. These claims used to be knows as claims for “Judicial Separation”. Unlike a claim for simple Divorce, a Divorce From Bed and Board is a strictly fault based claim, meaning in order to prevail your spouse must have done something wrong. Removing a spouse from the marital home is not the primary purpose of the claim in law, however it is the practical result most Divorce Attorneys are looking for when they file these claims. In order to file a claim for Divorce From Bed and Board against your spouse, you must allege and prove the following:
- Spouse abandoned his or her family
- Spouse maliciously turned the other out of doors(kicked out of the home).
- Spouse, by cruel and barborous treatment, endangers the life of the other spouse
- Spouse offers such indignities to the person of the other as to render his or her life condition intolerable and life burdensome
- Spouse becomes an excessive user of alchohol or drugs so as to render the coniditon of the other spouse intolerable and life burdensome.
- Spouse commits uncondoned adultery (unforgiven or approved of)
One additional requirement is that the moving party show that they were a dutiful and faithful spouse during the marriage and did nothing to provoke or in some way justify the actions of the offending spouse. In other words, if you file a claim for Divorce From Bed and Board based upon your spouse cursing at you and calling you vile names (offering indignities) and the evidence shows that in fact you initiated arguments by cursing at your spouse and calling them vile names, it could be found that you provoked an equal reaction from your Spouse that did not amount to indignities as you engaged in the same behavior. Another example would be accusing a spouse of constructively abandoning the marriage by leaving the marital bedroom and refusing to engage in intimacy when in fact you demanded the spouse leave the bedroom and repeatedly brought members of the opposite sex into the bedroom with you when your spouse was away from home. It is important to understand that you would benefit greatly from consulting with an experienced divorce lawyer before determining whether or not you have a good claim for Divorce From Bed and Board as what exactly amounts to abandonment, substantial cruelty, indignities and so forth is not self evident. You could very well have a claim even if you do not believe you do. Your lawyer will advise you on what specific acts constitute a basis for a successful claim.
Once you have established your claim for Divorce From Bed and Board, you will still have to convince the Court to make an award of the marital home, which the Court is not required to do. The Court(or jury) can find in your favor, assign legal responsibility for the separation, order the separation, and yet the Judge can refuse to order the losing party to vacate the marital home. That is an unfortunate result, but it can happen. In most cases however, a Judge will order possession of the residence when the case is made and supported.
There are also other uses and benefits of a claim for Divorce From Bed and Board, such as gathering and putting on the record otherwise inadmissible evidence of marital misconduct, cutting off or limiting rights of inheritance, creating a formal date of separation, and the filing of a claim often serves to break the logjam in negotiations between couples who cannot agree on who is going to leave by forcing a realistic negotiation.
In summary, the best way to get your spouse out of your home if you have both have decided to divorce is to negotiate and come to an agreement. If you cannot, and neither one of you will budge with regard to who is leaving, then filing a claim for Divorce From Bed and Board may be your only option other than to continue to go on living as you have been living without separating. Consult with a local North Carolina Divorce Lawyer to discuss your situation and assist you in evaluating your options. Retaining a divorce attorney to advise you and negotiate on your behalf can make a tremendous amount of difference. Sometimes the threat of litigation can convince an unreasonable spouse to compromise short of having to go to Court. In any case, it is always best to know your rights and your options.