Can I force him to leave?


#1

Here’s what I’ve read on the home site for this situation:
“What if one spouse wants the other spouse to leave?
In the film “The War of the Roses,” Michael Douglas and Kathleen Turner go to great lengths to force the other person out of the house. Many have found the movie’s dark humor entertaining. Unfortunately, its premise isn’t necessarily that far-fetched. Often the law forces people to act in strange ways to protect their interests. This can sometimes make getting a spouse out of the house very difficult. However, under the law in effect since June 21, 1995, it is far less difficult for parties to decide to live apart. In many instances, one spouse finds that he or she is in an unworkable marriage, but, for whatever reasons, does not want to leave the marital residence. While he or she might want to force the other spouse out of the house, an individual cannot legally do so without the intervention of a third party, such as the court. North Carolina courts have the power to force a spouse out of the marital residence if the other can support a claim for divorce from bed and board, child support, and alimony or postseparation support where fault is shown.
What is divorce from bed and board?
Divorce from bed and board is an antiquated statute and concept, but it still has its place in family law. It is, essentially, a judicially-sanctioned separation. In order for a spouse to prevail in a divorce from bed and board action, he or she must establish that the other spouse has committed one of the following fault grounds: 1. Abandonment. ( i.e. willfully leaving the marriage without just cause and without the consent of the other spouse) 2. Maliciously turning the other spouse out of doors. 3. Cruel or barbarous treatment that endangers the life of the other. 4. Indignities that render the other spouse’s condition intolerable and life burdensome. 5. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome. 6. Adultery. If the court finds that at least one of these factors exists and that the marriage has deteriorated so badly that the only remedy is to force one spouse to leave, it will do so by granting a divorce from bed and board. If the court awards custody of the children to one spouse, a corresponding child support award may include possession of the marital home. The court might even order transfer of title to real property as part of an alimony or child support award. It is very important to note, though, that forcing a spouse to leave the marital home is quite drastic and courts are reluctant to do so unless the evidence strongly supports that course of action. It thus makes sense to consider seeking possession or ownership of the marital home in conjunction with an action for divorce from bed and board, alimony, postseparation support, and/or child support. At the very least, such a claim forces the other spouse to deal with the situation and may lead to expedited resolution of some separation issues.”

You may find the #5 reason to be of interest. Hope this helps. You may want to let him know that your one year, one day separation requirement for divorce will not begin until one of you move out.
Good Luck!


#2

Dear tcwaller,

Many individuals take the same position as your when they begin discussing separation, but through negotiation the parties can reach a reasonable resolution. I would speak to an attorney and retain them to work with your Husband, or if you do not have the means to afford an attorney, you could try suggesting the two of you see a mediator in your community.

If that is not possible you may be able to file a divorce for bed and board to ask the court to order your spouse to leave the residence, however without more facts it would be hard to determine if you would be successful in a claim for divorce for bed and board.

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

ROSEN.COM

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.


#3

Recently my husband told me that we weren’t compatible and that he wants our marriage to end. What’s not compatible is that I won’t tolerate him going out drinking with his buddies every weekend, but that’s neither here nor there. He has said that he wants to separate and get a divorce, but that he’s not leaving until we sell our house. I, on the other hand, don’t want to sell. That is the only place that my children have ever known as home. Besides, I was not at all prepared for this so I don’t have any money saved to provide a place for me and my children to go. Can I force him to leave since this is what he says he wants?