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Obtaining Legal Separation in North Carolina If One Spouse Refuses to Leave the Marital Home

spouse leavingNorth Carolina is a “no fault” divorce state, and grants a divorce judgment to legally married couples based only on two grounds. In order to grant a divorce judgment, the state requires either of the spouses to be legally insane, or for spouses to have lived separately for a year prior to filing for divorce.

When using separation as grounds for divorce, the divorcing spouses must have lived separately for one year. This basically means that one spouse has to move out and establish his or her own residence and evidence their intent to be separated. Getting a divorce can be difficult if your spouse refuses to leave the marital home. However, there are several ways around it.

Your spouse may be willing to be separated from you, but may not want to move out from the marital home. In such case, you may consider moving out yourself. You may negotiate a separation agreement with your spouse to address custody, property, and support issues. This agreement, once signed by both parties and duly notarized, becomes a legally binding contract. Obtaining legal help from an experienced divorce attorney will help ensure that your rights are protected before you sign a separation agreement and before you move out from your family home.

If you want to be separated from your spouse but neither of you wish to leave the marital home, you have the option to file for “divorce from bed and board,” which is also referred to as legal separation. Divorce from bed and board allows you to be legally separated from your spouse, even if both of you live under the same roof. This form of divorce can be filed based on fault grounds such as indignities, cruel and barbarous treatment, adultery, and drug and alcohol use. You may also request the court to order your spouse to leave the marital home. Unlike an absolute divorce that completely ends the marriage, divorce from bed and board or legal separation does not legally end the marriage. You will still need to wait for a year after physical separation to file for absolute divorce.

If your spouse exhibits domestic abuse and physical violence within the home, you may request the court to issue a restraining order that typically orders an abusive spouse to move out from a family home. However, your spouse’s removal from your home does not necessarily mean that you are legally separated.

Being separated from your spouse for a year is the only other way to get a divorce in North Carolina aside from being married to a legally insane spouse. Separation is the first step to take towards divorce. If neither you nor your spouse wants to leave the marital home, it’s highly suggested that you consult with an experienced North Carolina family lawyer. Contact McIlveen Family Law Firm at (704) 865-901 today to discuss your case.

About McIlveen Family Law Firm

The McIlveen Family Law Firm handles all types of divorce and family law cases.


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