I would suggest that this would work as long as you do not have a separation agreement stating no overnight guests of the opposite sex while the children are there. That may be something that could be argued as the resumption of marital relations.
The resumption of marital relations is defined below:
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I didn’t mean to post that yet…
Why could the children not stay with you instead of you staying with them? This could complicate things down the road for either of you if you meet someone new, and could also confuse things for the children. I would suggest that you work out a schedule that your children stay with you instead of you spending the night in the marital home.
Thank you so much for your response(s). I want to visit and babysit them in “their” environment (home). My sister does not have the room at her home to accomodate them both (the children) and me. Feel like it would be easier because their schedules with school, etc. because I will live about 16 miles from them.
Believe me, there would be no sexual intercourse AT ALL between my husband and I while staying there. I would sleep with my daughter upstairs from him.
I guess my real question was, too narrow it down, goes: Are there a certain amount of days, persay, that I have to actually sleep at my own dwelling. I know about the one year, one day aspect of the agreement, but does it not count on the days I am actually at their home? Would any subtraction have to be done?
lisa t. logan
Hopefully an attorney will respond to this.
I would think that if you stayed one night a week it would not make the separation date start over but as I said it may cause other complications down the road. If your STBX is willing to let you do this I would draw up an agreement that he NOT stay there when you do. There is a scenario always seemed a little extreme to me but check into it and get it in writing. This is where instead of the children switching from one parents house to another, the parents move in and out of the marital home so that the children’s lives are not disrupted. If you and your STBX are amicable enough to work this situation out then it possibly could be better for the children but I will caution you again to get this agreement in writing. Set up a schedule and have him stay somewhere else for those nights of the week while you stay with the children. In my opinion, it’s not a long term solution but it may be one that works for you.
As far as the separation goes, there’s no subtracting said number of days. The year starts the day you move out and it would either start over or it wouldn’t. You can’t be separated while staying in the same home, even sleeping in separate bedrooms so this may be a little tricky, especially if one of you does not want the separation. That’s why I suggest that whatever agreement you come to about staying overnight in the marital home, ask him to make other arrangements for those nights, and get it in writing and notorized.
Thanks again for your advise. Who am I kidding though. My husband does not want to separate or divorce. He will not sign an agreenment which in turn forces me to leave the house without the children. He said I can go, but the kids stay. I can not afford a home on my own. I DO NOT think this separation law is very helpful to people who can not afford to live on their own and have no family to move in with. I have my sister, but I don’t know for sure if she wants me to LIVE with her at all times for that amount of time. All my other family lives out of state and I can’t move that far from my children. I guess if both parties don’t agree and no one is insane, you are forced to stay together and be unhappy. Like the old saying goes…you made your bed-now lay in it!
lisa t. logan
Dear lisa t.l.,
You are correct that your situation does not have any easy answers, but you do have options. First, I would make sure that you do not have any family or friends that can help you out. If you do not, you can represent yourself in court and ask the court to make a decision regarding who remains in the house. Your legal address does not matter when determining whether you separated, what matters is whether you actually are separated. If you decide to move out there is no reason you cannot take your children with you.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
Thank you Ms.Nevicosi for your response. The only way I can live out of my house with my children is to go out of state to live with my mother. I cannot afford any separate housing myself. My husband can then in turn get an order and have me bring them back, no? So I just feel my situation is not even a situation any more, I will have to just live with my husband, who refuses to give me the children if I want to separate (He knows I won’t leave them and go out of state and I can not afford separate housing here). He does have the upper hand and of course, the last laugh. Thanks again.
lisa t. logan
Dear lisa t.l.,
There is no legal reason you cannot leave the state and he may be able to get an order for the children to be returned, but that is not definite. If you are not leaving with the intention of interfering with his custodial rights, it makes the situation easier. I would consult with an attorney before making a final decision, but you may be able to move.
Helena M. Nevicosi
Attorney with Rosen Law Firm
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax
10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax
1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.
I am wanting to separate from my husband and he said I could go, but the kids stay with him. If I go and live with my sister and have her address as my legal address (ie: driver’s license, bills, etc.) but I do spend the night on occasion in my husband’ dwelling on occasion to be with my kids or to babysit as needed, can I configure this in to the one year one day requirement? Please advise.
lisa t. logan