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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?
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.
By: Glenn Doyle