Cannot get him to leave - help!

North Carolina Divorce Law Divorce and Separation Answers
1

Hi, I paid $75 to a lawyer yesterday for about 30 minutes of his time. Many people have heard my story and responded by telling me to see a lawyer, so I did. I think my money was wasted now.

It’s a long story & I don’t know if I can tell it all in a nutshell. I’m 58, he’s 63. We’ve been married 5 years. There are no children involved. We’ve been apart but under the same roof for at least half of that 5 years.

I’m the responsible adult in the marriage, financially & every other way. I work full-time, always have. He draws a small social security check each month and occasionally gets a subcontractor type job which results in a few hundred dollars. I pay all the bills. He contributes towards that somewhat when he can. I buy the groceries, do the shopping, make sure everything in the household is done.

I do not want to continue this way. I realize that the marriage has been over a long time. It never was much of a marriage to start with. I want to be separated so that then, after one year we can be divorced. I cannot get him to move out. This is my place, bought & financed before he moved in. My maiden name is still on all the paperwork. Logically he should be the one to leave.

He won’t leave. He says he cannot afford to move out. He said if I give him $2000 cash then he’d move out. I do not owe him any money, he just pulled that figure out of the air.

The lawyer I spoke to yesterday suggested that I provoke him to anger, so much anger that maybe he’d assault me in some way. Then I’d be able to get a court order removing him from my residence. The husband has never been a mean violent person & I hate to have it come to that.

His second suggestion was that I go on & file for divorce since we’ve been apart. I questioned that because I thought a couple had to be living apart in separate residences one year. He said that if it is not protested that I might get the divorce anyway and then, being not married, I could force him out.

Other than that, he had no good advice for me & he admitted that he didn’t. About the $2000 cash, the lawyer suggested that it might be worth it if I paid it to get rid of him. First of all, I don’t have $2000. Secondly, isn’t that submitting to blackmail? I know his fee was only $75, but I felt a little cheated. Do you at Rosen Law Firm have any good advice for me? Or others reading this?

2

I do not agree with the advice of the lawyer you spoke with. Provocation with the expectation of violence is never the correct answer. Do not put yourself at risk.

As for filing for divorce, legally you cannot do this until you have been living in separate residences for a year. Alleging that you have been separated in a divorce complaint when you have not been is perjury.

The proper way to go about this could be to file for a divorce from bed and board. This is a cause of action which allows the court to order one spouse to leave the residence. It can only be based on fault (adultery, physical cruelty, habitual drunkenness, ect). The cost of pursuing this action could be over the amount of money your spouse is requesting to leave, and in any event, is not possible unless you have the proper fault ground upon which you base your action.

The only other option is for you to move out, file for Equitable Distribution, and include a motion for return of separate property in your complaint.

3

I do not agree with the advice of the lawyer you spoke with. Provocation with the expectation of violence is never the correct answer. Do not put yourself at risk.

As for filing for divorce, legally you cannot do this until you have been living in separate residences for a year. Alleging that you have been separated in a divorce complaint when you have not been is perjury.

The proper way to go about this could be to file for a divorce from bed and board. This is a cause of action which allows the court to order one spouse to leave the residence. It can only be based on fault (adultery, physical cruelty, habitual drunkenness, ect). The cost of pursuing this action could be over the amount of money your spouse is requesting to leave, and in any event, is not possible unless you have the proper fault ground upon which you base your action.

The only other option is for you to move out, file for Equitable Distribution, and include a motion for return of separate property in your complaint.