In January, my wife and I decided to split. She told me she wanted me out of the house immediately, so the one year waiting period would go by sooner and because she just didn’t want me around. With no where else to go, I packed my things and headed to my family in Michigan. I cannot find work here, so I told her I wanted to return while she was on a research trip in June. She has informed me that I have no domestic residential rights to the home and that she is going to stay in it for the next year and if I step foot on the property, she can have me removed by the police. Is this true? and is there any way around it? The home is titled in our name and the mortgage is all mine, there has been no domestic violence, but I can prove a pattern of verbal abuse and domination on her part.
Once a spouse leaves the house to reside elsewhere in contemplation of separation he or she looses their right to possession of the home. Though your property rights remain intact with respect to ownership, you may not return to the property absent your ex’s express invitation. Otherwise you can be liable for domestic criminal trespass.
Here is my problem. My wife left first and stayed in a pool house with our son. But she left her 2 older sons from a previous marriage there with me as well as the oldest sons wife and child. When I saw the condition of the pool house i told her to get our son back home and i would find somewhere temporarily until she got full time work. I also told her i would pay the bills. Then everytime i would go back to get something (stuff as small as a few bowls) she would argue with me about it. Then i went to the house and check to see if i had mail and she threw the Domestic Criminal Trespass in my face. I have not been served papers but i did see her copy. Can i still go in my house to pick stuff up.
You may not return to the house without her permission. Since you have left to reside elsewhere, she has the right to exclusive possession of the home.
Are you saying that a necessary element of Domestic Criminal Trespassing(DCT) is lack of permission to enter or is it having been forbidden to enter?
The statute seems to say having been “forbidden” is the necessary element in question:
I guess I can see in the first instance (where jamessimonster=out-spouse) that his in-spouse is effectively “forbidding” entrance by saying if he “steps foot on the property, she can have me removed by the police”.
But In the second instance (where inoverdrive=out-spouse) where is the element of forbidding? Just because the IN-spouse aregued about possesion. How was he forbidden to come to the property? Or did we assume he was “forbidden” at the second encounter If/when she told him to leave and he would not.
Also, could you point to the statute that mentions loss of right to possession by “out-spouse”. Is it somewhere in Chapter 50 maybe?:
I mention the question of “being forbidden” vs "“lacking permission” because this page below below seems to say (like in statute 14-134.3 on DCT) that its NOT “ex’s express invitation” as mentioned but actually that the ex must expressly forbid entrance (“informed departing spouse not to return”):
“For criminal domestic trespass to have occurred you must prove that someone left the home voluntarily, the remaining spouse informed the departing spouse not to return, and then the departing spouse attempted to return. [confirm and clarify definition] This is a crime and law enforcement are the ones to enforce it. As a word of warning, without fail law enforcement folks dread domestic disputes more than any other calls. They may be reluctant to press the charge of criminal domestic trespass. But, to protect yourself against the fault ground of maliciouly turning the other out of doors, it may benefit you to create a record that the authorities were contacted and you attempted to lodge these charges.”
In support of the above, the DCT statute seems to support the necessity of “forbidding”:
It says “Any person who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the complainant and the person charged are living apart”
This actual case example seems to support the necessity of “forbidding” in DCT:
"Under N.C.G.S. § 14-134.3 (1993), the essential elements of domestic criminal trespass include:
enter[ing] after being forbidden to do so or remain[ing] after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse. . .
G.S. § 14-134.3(a). The (court) Ord?er mandated that defendant “shall not come to” the residence of her former spouse"
So in this specific case the court order itself is in effect the “forbidding” element necessary for DCT.
So again to sum up:
Is the element, lack of permission to enter or is it having been forbidden to enter?
OR in a way is it both in that at first you have to be “forbidden to enter” after which you must have “permission to enter” (which means as “no longer forbidden”)?
Sorry for the long post but thanks in advance for the clarification,
Lack of permission to enter can likely be implied as the “in spouse” as forbidding the other spouse to enter.
Erin, thank you for your answer, but could you(or someone) could you please clarify that statement above?
Are you saying that simply “not having permission” is likely to be implied in a courtroom as “being forbidden”? I’m confused because I have been told (and read) the contrary by some other NC attorneys. I’ve certainly seen cases where were a communicated verbal or written warning by in-spouse is of course “forbidding”. And in the previous posts, I linked to a case where a court order in place is what implies the forbidding element of DCT, But I have not seen an instance or case where LACK of communicating anything on that subject by the in-spouse would itself actually be implying that the in-spouse is “forbidding” the out-spouse to enter. If that is what you are saying, could you please mention a court case in which lack of permission was implied to mean “being forbidden”? Are there any persuasive precedents to support that?
Yes, I am saying that the absence of permission can be an implied refusal to allow the other spouse to enter the home, this is based on what I have seen happen in court in mine and other cases.
Alright, so to sum up that argument;
If an out-spouse, enter the premises of the marital home having been “forbidden” to do so, that out-spouse is committing domestic criminal trespass (part of §14-1343).
Absence of permission IS implied refusal(or forbiddance). Implied refusal IS being “forbidden from entering” (as required in §14-1343). THEREFOR, If the out-spouse enters the premises of the marital home without first obtaining permission, then that out-spouse is committing domestic criminal trespass.
and you’re saying that the reason you know (or know that it will be ruled) that an Absence of permission IS implied refusal is because that is what the court decisions have supported in your (your colleagues) NC court cases.
However, I’m just saying that I am not seeing clear consensus among all nc lawyers of family law. Interestingly enough, your(Rosen Law) podcast “NC Divorce Talk Radio” has an episode that seems like it does support this idea of “absence of permission as implied refusal”. In the podcast episode(9/23/10) There is clearly an absence of permission for this woman, but they actually suggest that the woman can go get her property (possibly with police escort) for a number of reasons including that she “has not been told to stay away from the property”. BUT they do say that the changing of the house door locks IS implying refusal or to “stay away”. So is she simply not committing DCT because she is not entering the house itself? Surely, she is entering the property even though not the house proper. Also, it seems her IN-spouse has chained and locked the RV. Is this not implied refusal?
I’m saying that it seems like she has been “trespassed from the property” by the fact that the in-spouse changed the house door locks and locked down the RV, which would be implied refusal. Though if I understand you correctly, you’re saying that It doesn’t matter if he has chained or locked anything. You’re saying that this woman (the out-spouse) has been “trespassed from the property” because of the simply absence of permission. So, if she didn’t first ask for and then receive permission prior to the moment that she steps on the property, she is committing domestic criminal trespass.
For reference, the podcast episode is from 9/23/10 entitled “How Do I Protect Myself If It Doesn’t Work Out?”.
I wonder if one of the podcasters Lee or Scott might weigh in?
The law is enforced and interpreted by different law enforcement officers and judges and as such there are some instances where the application of the law may not seem to be entirely consistent.
What if the man leaves the house first, after 2 months of the wife living part time in the house she claims her resident to be else where and ask the man to tend to the animal and the yard and that she will not be returning. Can the man claim the house back, change the locks and move back in? Will he be charged with Domestic Criminal Trespass? Can he be charged with it?
No, not if the other spouse relinquishes possession of the home and begins residing elsewhere.