I Asked for Separation, but My Spouse Refuses to Leave My Home — Now What?

So you asked for a marital separation, but your spouse refuses to leave the home you share. The home might even legally belong to you (if you inherited it or acquired it before marriage). But your spouse won’t move out, and you’re not going to use force to evict them. So, how do you handle an emotionally and legally challenging situation like this? You are going to need to learn your rights, risks, and next steps under North Carolina family law.

Understanding separate property versus possession rights

Ownership and the right to possession aren’t necessarily the same. As an analogy, think of a landlord who must give a 24-hour notice before entering a tenant’s apartment. The landlord owns the property, but the tenant enjoys possession of it.

Separate property

The common understanding that every asset gained during a marriage belongs to both spouses equally is only partially accurate. If you owned the house before you married, for example, the house was yours going into the marriage. Likewise, if you inherited your house or someone gave it to you during your marriage, it was yours. You might lose your exclusive right to the home, however, by re-titling it as joint property with your spouse or committing some other act inconsistent with exclusive ownership.

Possession rights

Even if the home is your separate property, however, your spouse might still have the right to remain living there until and unless a court orders them out. One of the main purposes of separating ownership and possession is to avoid eviction without due process using tactics such as:

• Changing locks.
• Removing belongings.
• Shutting off utilities.
• Physically forcing someone out.

Such self-help remedies are unlawful because they bypass the legal process, risk breaching the peace, and violate the occupant’s right to due process under the law.

Legal risks of changing locks or forcing a spouse out

The legal risks of taking matters into your own hands include compensation obligations, contempt of court charges, court-issued restraining orders, loss of custody rights, and even arrest for domestic violence under certain circumstances. Don’t risk it — a court must authorize any removal or change in possession.

Legal options to seek exclusive possession

Below is a list of legal options to seek exclusive possession of your home in case your spouse refuses to leave:

• Seek divorce from bed and board, which is a fault-based separation proceeding that can lead to the removal of your spouse from your home. Possible grounds include malicious turning out of doors, cruel or barbarous treatment, indignities rendering your condition intolerable, excessive use of intoxicants, and adultery. An additional ground, abandonment, would not apply if your spouse still lives in the marital home.
• Request exclusive possession of the marital residence through a temporary order in a custody or equitable distribution The court might award you possession based on factors like the best interests of your minor children, financial hardship, or the need for stability during divorce proceedings.
• Seek a protective order (DVPO) if your spouse has resorted to threats, harassment, or abuse. A DVPO can immediately order your spouse to vacate the home and stay away, regardless of who owns or leases the home.

Be careful — any of these could backfire on you since your spouse can use them against you too under the right circumstances.

Factors the court considers in possession disputes

A court will consider various factors when deciding possession, including the following:

• Whether you enjoy sole legal ownership of the home as separate property. Even though ownership does not equal possession, it is still a factor.
• The best interests of any minor children who live in the home.
• The safety of both spouses, but especially the safety of the non-owner spouse.
• The financial capacity of each spouse.
• Whether one side is at fault for the possession dispute.
• The ability of the non-owner spouse to find other housing.

The court may consider any other relevant factor.

Why the court may allow the non-owner spouse to remain

There could be many reasons why a court might allow your spouse to remain in the family home. It will work against you, for example, if you have not filed for a formal legal separation by the time you seek exclusive possession. Alternatively, the judge might also be reluctant to order the breakup of the family home if it seems that cohabitation is possible. This is especially likely if your minor children live in the home.

The most important thing to remember is that ownership doesn’t guarantee immediate possession without a court order. The counterintuitive nature of this legal principle is why you need to keep reminding yourself of it.

Practical tips for sole homeowners navigating separation

In many ways, navigating a physical separation is like attempting to tiptoe your way through a minefield. The dangers are hidden, but potentially devastating when they blow up. To ensure that things go as smoothly as possible, observe the following tips.

Gather documentary evidence of your separate ownership of the home

Normally, documentary evidence will include the title document with your name on it. You will also need proof of the date on which you acquired the property to prove that you brought the home into your marriage.

Take the appropriate legal action to remove your spouse from the home

A skilled family lawyer should be able to tell you which of the above-listed three options are best under the circumstances of your case.

Don’t react emotionally or thoughtlessly

Above all, don’t take unilateral action, such as changing the locks, that could get you tagged as the aggressor. Getting into legal trouble could harm your interests in ways you might not be able to foresee.

Contact a North Carolina family lawyer immediately

Your situation might be more difficult than you realize. Contact a North Carolina family law attorney to protect your property and your rights during a marital separation. Epperson Law Group PLLC is a seasoned, aggressive North Carolina family law firm that will fight to ensure the best possible outcome for you. Since we are trilingual, you can contact us in English, Spanish, and Greek.