If you move out -- that is, you physically separate from your spouse prior to divorce -- will it affect your right to alimony and child custody? What if you want your spouse to move out?
This article is a resource for North Carolina couples about to become involved in the issues and processes of separation. Here, we provide information about why couples that wish to separate often do not, whether those reasons have some legal foundation, and ultimately, how to get a spouse out of the house.
(For more information on North Carolina family law issues, including alimony laws, see the resources on our North Carolina Family Law page.)
In addition to serving a multitude of emotional and practical purposes, removing a spouse from the house has important legal significance in North Carolina. Most family law issues cannot be decided by a judge until the spouses are separated. For instance, in most cases where the parents are still living together, neither can ask a court to determine which should have custody of the children. Also, neither party can file a complaint for absolute divorce until they have been separated for at least a year.
Although separation is crucial in family law, many spouses nonetheless stay together in unhealthy and unwanted marriages. There are many legal and emotional reasons why this is so, which include not wanting to "abandon" the marriage or jeopardize the chance of being awarded custody of their children. A spouse may also be terrified of retaliation if he or she leaves.
In the film "The War of the Roses," Michael Douglas and Kathleen Turner go to great lengths to force the other person out of the house. Many have found the movie's dark humor entertaining. Unfortunately, its premise isn't necessarily that far-fetched. Often the law forces people to act in strange ways to protect their interests. This can sometimes make getting a spouse out of the house very difficult. However, under a law passed in 1995, it has become far less difficult for North Carolina spouses to decide to live apart.
If One Spouse Wants to Leave
We often hear people say that they are staying in a marriage because they do not want to "abandon" the marriage. Abandonment carries with it many negative connotations, but determining whether a spouse's departure meets the legal definition of abandonment requires an evaluation of the facts.
Until 1995, if one spouse legally abandoned the marriage, that constituted fault, for which alimony could be awarded to the other spouse. Under prior law, a dependent spouse who wanted alimony had to show that the supporting spouse was at fault. In the eyes of the law, abandonment was, and still is, fault or marital misconduct. Since the law changed in 1995, abandonment is a factor the judge may consider in awarding alimony, but fault will not necessarily be a determinative factor. In other words, alimony may be awarded when the supporting spouse abandons the other, but it may also be awarded when the supporting spouse has committed no fault.
In determining the amount and duration of alimony, the court must consider all relevant facts, including but not limited to:
- the relative earnings and earning capacities of the spouses
- the ages and the physical, mental, and emotional conditions of the spouses
- the duration of the marriage
- the standard of living of the spouses established during the marriage
- the relative needs of the spouses
- the contribution of a spouse as homemaker
- the relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs
- the extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor
- the amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical insurance, retirement funds, other insurance, or Social Security
- the marital misconduct of either of the spouses through the date of separation
- the contribution by one spouse to the education, training, or increased earning power of the other
- the property brought to the marriage by either spouse
- the relative assets and liabilities of the spouses and the relative debts of the spouses, including legal obligations of support
- the federal, State, and local tax ramifications of the alimony award, and
- any other factor relating to the economic circumstances that the court finds to be just and proper.
Abandonment of one's spouse continues to be defined as marital misconduct, so the judge may consider it. However, it is only one factor of many which the court is required to examine. Thus, even without misconduct by the supporting spouse, a dependent spouse in need of financial support can now be awarded alimony. Conversely, even if the supporting spouse abandons the marriage, and thus commits marital misconduct, the judge may choose not to award any alimony to the dependent spouse if enough other factors on the list above go against an award. Hopefully, the effect of this change has been that fewer unhappy couples remain together solely to avoid a finding of legal abandonment.
If One Spouse Lacks the Resources to Make It Alone
Sometimes, a spouse will stay in a marriage because he or she lacks the financial resources to set up a separate household. Although this may be true if both members of the couple are in financial trouble, it might not be true if the other spouse is better off.
Under North Carolina law, spouses are presumed to have an equal right to resources earned or acquired during the marriage. Thus, if there is a marital bank account that one spouse controls, the other spouse is still generally entitled to half of the money in that account. A financially dependent spouse should explore all options when trying to gather the resources to move out of the house. It is perfectly acceptable to use marital funds from a joint bank account, for instance, to make a security deposit on an apartment. And if one spouse has cut off the other's access to marital funds, North Carolina law allow for an interim allocation of cash or assets to enable a needy spouse to move out. By understanding the law and reviewing the family's financial status, a departing spouse can often find a way to move out of an unhealthy marriage.
How Separation Affects Custody
Many couples stay together "for the children's sake." Other couples feel they should separate for the very same reason. However, parents in this second group often fear that their decision to separate for the children may jeopardize their chances for custody when the couple formally divorces.
Consider the situation of a father who feels that he must leave his marriage for the health of his family. In his heart, he believes that he is a better parent than his wife. Aspects of her parenting style worry him, and he feels that the children will be healthier and happier if he has primary custody. He also believes that he is more likely to facilitate contact between the mother and the children than his spouse would be if circumstances were reversed.
In order to develop a plan and establish himself in a separate residence, he decides to leave for a short period of time. After a few months, once he has made a new home for his children, he plans to return to seek custody. Is his plan to leave the home for a short time a good one? Probably not. Every day that he is away from his children - regardless of his reasons or intent - could be construed as desertion. Furthermore, every day that he is away is one more day in which the mother's relationship with the children grows stronger. What is the best course of action for a parent who needs to leave, but wants to protect custody? In most cases, the parent should take the children with him or her. It may be difficult - in fact, some parents may decide that the best interests of their children dictate giving up custody - but it is an important course of action to consider.
If One Spouse Leaves and Then Comes Back
North Carolina has a domestic criminal trespass law, which states that a spouse who leaves the marital residence (referred to as the "out-spouse") and then tries to return can be denied entry by the other spouse. In other words, the spouse who stayed in the home (referred to as the "in-spouse") has the right to refuse to let the other back into the home. If the in-spouse refuses access to the house and the out-spouse tries to force his or her way in, then the law protects the in-spouse. The in-spouse may appear before a magistrate; and a law enforcement officer can then arrest the trespassing out-spouse if deemed necessary and appropriate.
If One Spouse Wants the Other to Leave
Sometimes, one spouse finds that he or she is in an unworkable marriage, but does not want to leave the marital residence. While that spouse might want to force the other out of the house, this can't be done legally without the intervention of a third party, such as the court. North Carolina courts have the power to force a spouse out of the marital residence if the other can prove a claim for divorce from bed and board, child support, and alimony or postseparation support where fault is shown.
Divorce from bed and board is an antiquated concept, but it still has its place in family law. It is, essentially, a judicially-sanctioned separation. In order for a spouse to prevail in a divorce from bed and board action, he or she must show that the other spouse has committed one of the following fault grounds:
- abandonment (that is, willfully leaving the marriage without just cause and without the consent of the other spouse)
- maliciously turning the other spouse out of doors
- cruel or barbarous treatment that endangers the life of the other
- indignities that render the other spouse's condition intolerable and life burdensome
- excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome, or
If the court finds that at least one of these factors exists and that the marriage has deteriorated so badly that the only remedy is to force one spouse to leave, it will do so by granting a divorce from bed and board. If the court awards custody of the children to one spouse, a corresponding child support award may include possession of the marital home. The court might even order transfer of title to real property as part of an alimony or child support award.
However, forcing a spouse to leave the marital home is quite a drastic step, and courts are reluctant to do so unless the evidence strongly supports that course of action. It thus makes sense to consider seeking possession or ownership of the marital home in conjunction with an action for divorce from bed and board, alimony, postseparation support, and/or child support. At the very least, such a claim forces the other spouse to deal with the situation and may lead to expedited resolution of some separation issues.
If a spouse in North Carolina can prove that he or she was a victim of domestic violence and/or is in fear of imminent violence, the court can order some remedies related to separating the spouses. And, the court can move quickly - in a few days - if the circumstances justify such an expedited schedule.
Among other things, a court has the authority to grant a victim-spouse possession of the marital residence and to exclude the other spouse from the residence, to require the violent spouse to provide the victim-spouse and the children with suitable alternative housing, and to order eviction of a violent spouse from the marital residence and grant assistance to the victim-spouse in returning to the marital residence.