When families face separation or divorce in Raleigh, NC, who gets the marital home under…
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 there are requirements that must be met in order to have a sole legal claim to the marital home. An agreement between spouses on who is to move out and situations of domestic violence are examples meeting the requirements.
Who Has the Right to the Marital Home?
I cannot begin to count the number of times clients have asked me this question in all my years as a Raleigh Divorce Lawyer. The fact is North Carolina Divorce Law as it is written, does not provide any mechanism to force a "no-fault" separation or disposition of a marital residence prior to separation.
Why are No-Fault Allegations Important in North Carolina Divorce?
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 a legal 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 Raleigh divorce attorney will tell you, however, don't make that move until you have had a discussion with your divorce lawyer. Leaving without taking legal actions to protect yourself is almost always a very bad idea.
Does North Carolina Have a Ruling on Who is Forced to Leave the Home?
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 marital 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. 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.
What Steps Should I Take to Remove My Spouse from Our Home?
Since North Carolina doesn't have an official ruling on living arrangements, the process of having your spouse move out can be complicated, but that doesn't mean you can't achieve the desired result.
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 downside 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 a 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 known 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 Raleigh 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 barbarous 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 alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome.
- Spouse commits un-condoned adultery (unforgivable or approved of)
Be Aware of the Requirements for Claiming Divorce from Bed and Board
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.
Examples of Justifying Actions for Divorce from Bed and Board
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.
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.
Are There Benefits to Claiming Divorce from Bed and Board in North Carolina?
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
- 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
What Should I Do If My Spouse is Unreasonable?
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.
Consult with an Experienced Raleigh Divorce Law Firm
It is best to speak with an attorney well versed in North Carolina divorce law before making any solid decisions regarding your marital assets. Find out how our team of experienced divorce lawyers in Raleigh can help you reach a positive outcome in your contested or uncontested divorce case. You can reach us by calling (919) 301-8843 or completing the online contact form below.