How to Obtain a Legal Separation if a Spouse Refuses to Leave in North Carolina

By Beverly Bird

Unfortunately for some spouses in North Carolina, separation is often the only way they can obtain a divorce. The state does not recognize fault-based divorce, which means you must either separate from your spouse for a year before you can file or your spouse must be legally insane. North Carolina does not allow you to live under one roof during your separation; one spouse must move out and establish his own residence. Therefore, if your spouse refuses to leave the marital home, getting a divorce will be more difficult. However, there are ways around this, such as filing for legal separation instead.

Moving Out

Your spouse's refusal to move out may not mean he doesn't want a separation. Maybe he just doesn't want to leave his home. In this case, you have the option of being the one to move out. Either with the help of attorneys or on your own, you can negotiate a separation agreement and property settlement addressing issues of property, support and custody. You can include a provision stating that after you’ve both signed the agreement, you’ll move out. In North Carolina, these agreements are legally binding contracts, so after both you and your spouse have signed one, your rights are protected and you can safely leave the home.

Divorce From Bed and Board

North Carolina calls legal separation a divorce from bed and board. Unlike an absolute divorce, which actually ends your marriage, you can file for a divorce from bed and board on fault grounds. Therefore, if you have grounds, you can become legally separated, even if your spouse won’t leave the home. North Carolina’s fault grounds for a divorce from bed and board include cruel and barbarous treatment, indignities, alcohol or drug use, or adultery. You can then ask the court for relief in your complaint, such as ordering your spouse to leave the home. You can also ask the court to address issues of property, support and custody in your complaint. If the court grants you a judgment of divorce from bed and board, it will legally separate you and include these provisions.

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Other Measures

In dire circumstances, you also have a third option. If your spouse is subjecting you to physical violence or domestic abuse, you can ask the court for a restraining order. If he’s verbally abusive to the point where you have to call the police to your home to get him to stop, this can also be grounds for a restraining order. A restraining order will usually order your spouse out of your home, but unless you also file for divorce from bed and board, his removal doesn’t necessarily mean you’re legally separated. It just means that one year and one day after he’s left, you can file for divorce.

Precautions

If you decide to leave the home after you’ve signed a separation agreement, you might be relinquishing your right to ever return again, so confer with an attorney before you take such a step. In North Carolina, if your spouse tells you he doesn’t want you to come back and you enter the property anyway, law enforcement can charge you with domestic trespass, a criminal offense.

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North Carolina Divorce a Year After Separating or Signing a Separation Agreement

References

Related articles

What Happens if I Refuse to Sign a Separation Agreement in Virginia?

Virginia is one of a handful of states that does not recognize the phrase “legal separation,” but this doesn’t mean you can’t legally separate there. You and your spouse can part ways, then negotiate and sign a separation agreement resolving issues between you. Virginia calls separation agreements “property settlement agreements,” although they address issues of custody as well as property. If you refuse to sign the agreement, your spouse can involve the court to resolve any issues.

Who Has to Leave When Divorce Is Filed?

Unless and until a court issues an order requiring you or your spouse to leave, both of you have equal rights to the marital home. The court generally can't make such an order unless one of you files for divorce first, but the act of filing for divorce doesn't force either of you out, at least not by itself.

Grounds for Divorce in Fayetteville, North Carolina

Divorce in North Carolina is governed by state law. Whether you are in Fayetteville, Durham or Ashville, the grounds for divorce are the same. North Carolina is a no-fault state; therefore, you don't need to prove your spouse caused the end of your marriage. Separation for one year and incurable insanity are the only grounds for divorce in North Carolina. A handful of grounds exist for obtaining a legal separation in North Carolina, however, they are rarely used.

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