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.
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.
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.
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.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.