Under North Carolina's new alimony law, the trial judge may now consider an award of spousal support without a showing of marital fault.

Marriage is a delicate balance. Involving as it does the hopes and interests of two different people, marriage is one of the most important decisions in someone's life.

Over time, however, the balance in a marriage can shift. If this shift becomes excessive, a decision needs to be made about whether to stay in the marriage or leave. Not surprisingly, this process often represents an agonizing emotional struggle.

If and when the decision is made to leave, many questions quickly arise. This paper has been created as a resource for those about to become involved in the issues and processes of separation. The goal of this discussion is to 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.

In addition to serving a multitude of emotional and practical purposes, removing a spouse from the house has important legal significance in North Carolina. The fact is that 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 one 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 the new law passed on June 21, 1995, it may now be far less difficult for parties to decide to live apart.

WHAT 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 connotations in our society, but determining whether or not a particular set of circumstances meets the legal definition of abandonment requires an evaluation of the specific facts. Moreover, in order to discuss abandonment, we need to understand the legal areas in which it is an issue. Only then can we know whether or not a spouse has any reason to worry about abandoning the marriage.

Until recently, the legal claim for which abandonment could become a key issue in North Carolina was alimony; however, a dramatic shift in the law occurred in the latter half of 1995.

Under the prior law, an important component of an alimony claim involved a showing by the dependent spouse that the supporting spouse was at fault. In the eyes of the law, abandonment was, and still is, fault or marital misconduct. Under the law that takes effect on October 1, 1995, abandonment is a factor that may be considered by a judge when determining an alimony award, but fault will not necessarily be a determinative factor. Thus, alimony might still be awarded when the supporting spouse abandons the other but it may now also be awarded when the supporting spouse has committed no fault.

Under the new law, in determining the amount and duration of alimony, the court will examine anything and everything that relates to a party's alimony claim. In order to view the big picture, the court must consider all relevant factors, including but not limited to the following:

(a) The relative earnings and earning capacities of the spouses.
(b) The ages and the physical, mental and emotional conditions of the spouses.
(c) The duration of the marriage.
(d) The standard of living of the spouses established during the marriage.
(e) The relative needs of the spouses.
(f) The contribution of a spouse as homemaker.
(g) 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.
(h) 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.
(i) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance or social security.
(j) The marital misconduct of either of the spouses through the date of separation.
(k) The contribution by one spouse to the education, training, or increased earning power of the other.
(l) The property brought to the marriage by either spouse.
(m) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support.
(n) The federal, State, and local tax ramifications of the alimony award.
(o) Any other factor relating to the economic circumstances that the court finds to be just and proper.

As the law develops, we will learn more about the weight judges will give to these multiple factors.

Under the new law, abandonment of the other spouse continues to be defined as marital misconduct, so it may be considered by a judge. However, it would be 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 receive an award. Conversely, if the supporting spouse does indeed abandon the marriage, and thus commits marital misconduct, but the other factors listed above indicate that the dependent spouse should not receive alimony, then the judge may choose not to award any alimony to the dependent spouse. The anticipated and crucial effect of this change in the law will be that individuals will no longer be as threatened by an allegation that they abandoned the marriage. Hopefully, fewer unhappy couples will remain together in the marital residence due to this fear alone.

WHAT IF ONE SPOUSE WANTS TO LEAVE BUT IS UNCERTAIN ABOUT HAVING THE NECESSARY RESOURCES?

Sometimes an individual will stay in a marriage only because he or she does not feel that the financial resources are available to establish a new residence.

In some cases, this may be true. In many instances, however, the spouse simply does not realize that he or she might have access to sufficient resources. While an in-depth exploration of North Carolina's property distribution law is beyond the scope of this discussion, there are a few points that are worth mentioning.

The law says that spouses are presumed to have an equal right to resources earned or acquired during the marriage. Thus, if there is a marital bank account which one spouse controls, the other spouse is still generally entitled to half of the money in that account. In other words, 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 barred access to marital funds, North Carolina property distribution law provides an effective means for obtaining 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.

WILL LEAVING AFFECT A SUBSEQUENT CUSTODY DETERMINATION?

Many couples stay together "for the children's sake." Other couples feel they should separate for the very same reason. For this second group of parents, their fear is that even though they are leaving to protect the children, their chances for custody may be jeopardized by the fact that they decided to leave.

In some instances this fear is justified. In others, however, leaving may be the best course of action. 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 ultimately a better parent than the mother. Aspects of her parenting style worry him and he feels that the children will be healthier if he has primary custody. Moreover, he would most likely facilitate contact between the mother and the children. If the mother had custody, on the other hand, she would most likely cut off contact between him and the children.

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 deserting those children. 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 the pursuit of custody - but it is an important course of action to consider.

WHAT IF ONE SPOUSE LEAVES AND THEN TRIES TO COME BACK?

North Carolina has a Domestic Criminal Trespass law which states that if one spouse leaves the marital residence (referred to as the "out-spouse") and then tries to return, 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 entry, 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.

WHAT IF ONE SPOUSE WANTS THE OTHER SPOUSE TO LEAVE?

In many instances, one spouse finds that he or she is in an unworkable marriage, but, for whatever reasons, does not want to leave the marital residence. While he or she might want to force the other spouse out of the house, an individual cannot legally do so 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 support 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 statute and 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 establish that the other spouse has committed one of the following fault grounds:

1. Abandonment. ( i.e. willfully leaving the marriage without just cause and without the consent of the other spouse)
2. Maliciously turning the other spouse out of doors.
3. Cruel or barbarous treatment that endangers the life of the other.
4. Indignities that render the other spouse's condition intolerable and life burdensome.
5. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
6. Adultery.

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. It is very important to note, though, that forcing a spouse to leave the marital home is quite drastic 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.

WHAT IF THERE IS DOMESTIC VIOLENCE?

Domestic violence is a societal ill about which we are constantly learning more. It is becoming apparent that society must respond more quickly, compassionately, and effectively to assist individuals who experience violence in their homes.

While we still have a great deal of change to effect, the North Carolina Legislature has helped significantly by implementing the Domestic Violence Act, commonly known as "Chapter 50B." If a spouse can prove that they were the victim of domestic violence and/or is in fear of imminent violence, the court can order some remedies related to separating the spouses. Most importantly, the court can move quickly - in a few days - if the circumstances justify such an expedited schedule.

Among other things, in a domestic violence action 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.

IN SUMMARY

There are many issues to be explored by someone considering leaving a marriage. And beginning in 1995 dramatic changes in the law will very likely change the way that couples in North Carolina deal with the need and desire to separate. Individuals must gather sufficient financial resources to facilitate a move and, if applicable, establish a means of protecting custody interests. On the other hand, if someone is considering staying in the marital home but wants to use the court system to force the spouse out, that person must still be prepared to support allegations of fault.

Regardless of the circumstances, an individual should do all that he or she can to understand the legal, financial, emotional, and practical implications of the path chosen. Separating from one's spouse is never easy but with the right foresight and planning it can at least be made smoother.