Many times when I have met with clients in Greensboro or Charlotte the first question that is asked is “How do I get my Husband or Wife to leave the home because I need to stay there for the children?” Absent proof of “domestic violence,” what can be done?
If the home is owned by both or really even just one of the parties, getting the separation to occur often times is very difficult especially if the “other” party does not want the separation or even if he or she is willing to end the marriage they simply don’t want to deal with it or don’t want to leave the house. So…what can you do?
In North Carolina asking for a court ordered separation, a “divorce from bed and board,” does not provide a mechanism for the Court to ORDER that one party or the other has to leave the house. It is true that some Judges have ordered that a party leave based on a divorce from bed and board complaint. However, there is no case law to support such a ruling and so most of the Judges that we have dealt with in Guilford, Alamance, Randolph, Forsyth, Davidson, Cabarrus and Mecklenburg Counties have refused to order a party to vacate the home based upon a simple divorce from bed and board complaint.
So are you just stuck with having to live together or having to move out even if you don’t believe it is best for the children? The answer is No, you do have an option. Chapter 50 of the North Carolina Statutes controls actions for divorce, custody of children, child support, alimony and equitable distribution. It provides that a complaint for custody and child support of minor children MAY be filed with a divorce from bed and board action or even as a separate action standing on its own. (See NCGS Sections 50-13.1 and following). The Courts have found that as part of an award of “custody” or “support” for minor children that the Court has the power to order that a parent be given possession and use of the marital home for purposes of child custody and support. This authority allows the court to order that one parent has to leave the house so that the parent that has primary custody or that is in need of child support can use the marital home for the “best interest of the children.” Our board certified family lawyers are trained and are aware of this option and often use it as a way to aid a client and his or her children to remain in the home which often times is what is best for the children.