I have a cousin, Bernie, who lives in another North Carolina city. She is mid-30s, professionally employed and has two school-aged sons who are involved in numerous sports, school and community activities. My cousin spends the majority of her free time working with and for her kids.
Her problem is her husband, who was obtained through an unanticipated pregnancy. He is very under-employed and is a slob who spend his free time on the couch or in bed and does just about nothing to help around the house or with the kids. Worse, he had never contributed a dime toward their (nice) house, including the mortgage, taxes, insurance, utilities or other expenses. She has paid for it all and the mortgage is in her name as he had/has no credit. He is emotionally abusive to my cousin and had a recent, well-documented affair.
Bernie wants a divorce. The problem is her free-loader of a husband will not leave as he would have to get off his gravy train. She does not think she should have to uproot the boys and move out of a house that she has paid for all these years, just to get the “separation year” stated. Interestingly, she has no intention to seek alimony and has told her husband he can see and interact with the kids, yet she insists on full custody. He has yet to respond to any type of negotiation with her.
What can she do to get him out?
– Lillian in Pleasant Garden
Frequently, one of the hardest things to accomplish in North Carolina family law is the “separation” itself, when neither party wants to leave the residence. North Carolina requires 365 days of separation for a divorce, and separation generally means living under separate roofs for the 365 days. This requirement is so different than many states that allow you to apply for the divorce and all related proceedings from the same household.
That being said, there is a solution for your cousin. Your cousin needs to file an action for Divorce from Bed and Board, which essentially permits the court to grant a judicial separation and oust the deadbeat husband from the home. She will probably need the help of a family lawyer.
North Carolina General Statutes 50-7 gives the framework for the grounds for divorce from bed and board, which is fault based. Luckily, one of the fault bases is “commits adultery”. There are grounds other than adultery, such as abandonment, mental cruelty, and excessive use of alcohol or drugs. Your cousin will state that her husband committed adultery in her complaint that she files with the court. She also may want to discuss in the complaint the financial abandonment. Her husband will have 30 days to answer the lawsuit and then the court will hear the case. Your cousin will submit her evidence of the adultery.
Your cousin should also ask for custody in the lawsuit and for a “writ of possession” on the marital residence for the benefit of the children. This doesn’t mean that the deadbeat husband/father will not get visitation, but your cousin needs the possession of the home for the benefit of the children. Both parties will have a duty of child support for the children, likely determined under the North Carolina Child Support Guidelines.
The issue of alimony is interesting in your scenario. One component of alimony is whether a person is dependent on the other spouse. It does not seem that your cousin is actually dependent on the deadbeat. He actually sounds dependent on her. Do not worry about this, however, because adultery is a bar to receiving alimony. Temporary alimony, now called post separation support, is not barred by adultery, necessarily. It is theoretically possible that this husband might get some temporary support from your cousin while he looks for a job. He certainly does not have a sympathetic case, however.
Thanks so much for writing, and please write to me again if you have further questions. Much luck to your cousin.
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This blog is revised from a previous column published in the Rhino Times.