Forcing your spouse from the marital home?

Recently on our divorce forum a user asked, “I live in the State of North Carolina. I have been married for 25 years. I am tired of living with my husband. I have asked my spouse to leave, but he refuses. I am wondering if I have any legal authority to force him out of the marital home?”

Reasons you can force a spouse to move out of the marital home

North Carolina laws favor marriage and want to encourage couples to stay married if possible. For this reason, North Carolina law requires divorcing couples to live separate and apart for one year prior to initiating a divorce.

So what do you do if one spouse refuses to move out of the marital residence? One simple option is for you to move out. Unfortunately, moving can create a legal disadvantage.

If you do decide to move make sure to discuss the option of filing an action for Equitable Distribution with a divorce lawyer to avoid the accusation that you abandoned the marriage, further encouraging the court to allow the house to remain with your spouse.

Reasons your spouse might legally be forced to move

Now you didn’t say why you wanted your spouse to move. There are legal reasons, however, which may force your spouse out of the marital home. For example, under some conditions, if your spouse commits an act of domestic violence (i.e., threats, assaults, harassment, or violence), the court may issue a protective order and give you temporary possession of the marital home.

While this type of action may be necessary if you are truly the victim of domestic abuse, filing this type of action against your spouse is serious and should not be used as a means to get temporary possession of the home. Not only is filing a false claim illegal, even if you do file this action your spouse could counter with an action for Equitable Distribution and the Court may distribute the home however they see fit.

What’s another solution?

Another option to force your spouse from the marital home even if he does not physically abuse you is called Divorce from Bed and Board. This action is simply a civil claim that you may file prior to a physical separation. To prevail under this action, however, you will have to prove that your spouse is at fault and has done something wrong. For example, you would need to prove one of the following:

  • Your husband has “abandoned” you (including withholding sexual intimacy)
  • Your husband has engaged in “cruel and barbarous” treatment and you fear for your life
  • Your spouse as acted in such a way that your life together is “intolerable and burdensome”
  • Your spouse kicked you out of your house
  • Your spouse has committed adultery without your consent or approval
  • Your spouse abuses alcohol or drugs and has made your life “intolerable or burdensome”

Bottom Line:

Negotiation a separation with your spouse is always preferable than taking legal action against them. If this does not work, however, you will have to talk to a divorce lawyer and review your options.

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