The end of the year is fast approaching. A saying in my line of work is that this is our slow time of the year. It seems that folks who may have been thinking about separating just try to get through the holidays, especially if there are children involved. Wanting to separate from your spouse is sometimes easier said than done. There are a myriad of issues you need to consider before either of you physically leaves the marriage.
1. Somebody’s gotta go. Even when both parties are unhappy and want to separate, many times neither wants to leave the marital home. You may have a great emotional attachment, you may want to stay for stability for the children, or sometimes, you just don’t want the other spouse to be able to live in what used to be “y’all’s” home. No matter the reason, in order to be legally separated in North Carolina, one of you must vacate the marital home.
2. But I don’t wanna leave? Now you may have a problem. You can’t force your spouse to leave. If there is domestic violence, you can seek a protective order and be awarded possession of the home and your spouse is not allowed to return. You could seek a divorce from bed and board – in essence a judicial separation, where the court could order your spouse to leave because his/her behavior or treatment of you is so intolerable. If neither of these fit your situation and you want to separate, you may be the one who has to leave.
3. I’m outta here! Although you and your spouse may own the home together or both be on the lease, once you leave with the intent to remain separate and apart, you no longer have a right to come and go as you please. You still have ownership rights to the home, but you’ve “abandoned” the property, so if you return without your spouse’s approval, you could be cited for trespassing. If you didn’t take all the personal property you wanted when you left, you’ll need your spouse’s approval or a court order to get what’s left. The spouse remaining, can also have the locks changed.
4. Whoa Nelly… not so fast. Her or she may be a jerk and you want out now, but if you leave and you have no court orders in place or a signed separation agreement, then neither of you are legally obligated to provide financial support to the other. Sounds crazy, right?! But it’s true. Even if your spouse leaves you with the marital home, he/she is under no obligation to financially contribute to the household bills unless a court orders them to do so our you can come to a mutual agreement.
5. So, now what?If you are not in danger of domestic violence and you can tolerate one another (perhaps living in two separate bedrooms or floors of the home for example), make a plan and set a time frame to physically separate. If you’re not working, you may want to get a part time job and stash that money away so you can have some funds in the event you have to support yourself or your children for a couple of months. Run your credit report, and if you don’t have your own credit card, open one so you can begin to build your own financial history. If you plan on selling your home, many couples stay in the marital home until the sale of the house. Then use the proceeds to set up their own separate households.
James R. Sherman once said, “You can’t go back and make a brand new start, but you can start now and make a brand new ending.” Keep that in mind when considering separation. Deciding to end your marriage is the first step. Finding out about all your legal rights and options BEFORE you separate can help you put a plan in place so that you can make the best decisions for you and your family’s future.
New Direction Family Law