By Paul K Mengert, II, JD
Moving out is not a good first step to divorce.
Moving out can seem like the obvious first step to ending an unhealthy relationship. But moving out has many potential repercussions for married individuals in North Carolina, making it an impulsive and bad decision.If physical abuse is occurring, you should request a domestic violence protective order, often referred to as a 50-B. The Clerk of Court’s office in each North Carolina County can give you information on filing a request for a restraining order if you are in danger.
Custody
If you are not in danger, moving out can hurt your standing in a child custody case. The parent who remains in the marital residence often has an advantage because the children are familiar with the marital home, their school is in that area, and their routine would not be disrupted by staying in the marital home. Judges decide a schedule for child custody based on each individual child’s best interests. If you move out, you are the one who can be portrayed as asking to uproot them, alter the status quo, and change everything. The parent staying at home has an advantage. You can file for child custody and support before separating from the marital home.
“I’m Backkk”
No, you are not. If you move out, your spouse can change the locks. If you move out, you can be charged with a crime for returning. Domestic Criminal Trespass means “Any person who enters the marital residence after being forbidden to do so or remains after being ordered to leave by the lawful occupant shall be guilty of a misdemeanor if the complainant and the person charged are living apart.”
Support
You’ve probably heard the term abandonment. Abandonment is marital misconduct and applies to alimony and divorce from bed and board in North Carolina. If a party has abandoned the family, it is considered marital misconduct and can be used as a factor for the judge to consider when awarding alimony to a dependent spouse. It can be a reason you get less money if you moved out, and it can be a reason you get more money if your spouse committed abandonment.
You are not a dependent spouse just because your partner makes more than you. A dependent spouse is substantially reliant on the other spouse for their maintenance and support or substantially needs maintenance and support from the other spouse. If you move out without an agreement for spousal support, you may not have enough money to sustain much of a living at all while you wait for a hearing.
Leverage
Living in an unhappy relationship stinks. Do not think, “I don’t want the divorce, so I want to give him/her space to reconsider.” Property division can take years. Living in an unhappy home together can motivate both parties to settle on even terms and move on. Often, attempting to work out an agreement for separation and property settlement before moving out is worth a shot.
Finally, if you have the opposite problem, a claim for Divorce from Bed and Board can be made when one spouse refuses to leave the marital home, as it provides a legal basis to have them removed.
Tips
Document. Document. Document. Every case is different; every individual has a different breaking point. When children are involved, you have to balance protecting the children from a harmful situation with avoiding the appearance of accepting or normalizing bad behavior or a bad environment. Put together a list of every financial account you or your spouse have, each retirement account, car, loan, and all property worth $50.00 or more. When it comes to money, many couples have one party that handles all the bills. If there are things you don’t know about your finances living together, expect even greater delays once you’ve moved out.
An experienced family law attorney can be an invaluable resource during separation and divorce. You don’t have to do it alone.