Leaving Residence before Seperation?


#1

She would not foreit her rights to the home by leaving. She is entitled to 1/2 the marital assets unless she signs saying that she is giving that up. My suggestion, have her file for divorce from bed and board and have him leave the home.
From the home site:
“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.”

If you believe that she is in immediate danger then by all means have her leave, with the children, long enough to file for this. After this is granted she could go back to the home, change the locks and call the police if he shows up. The separation agreement is just that, an agreement. They will be legally separated the day that they start living separate and apart and do not have to have an agreement for that to be official. She can possibly use the affair to gain custody and alimony, if it’s an option. Even though she condoned the fault previously by forgiving him and staying in the marriage, she could use it if she has proof that he has started cheating again.
Having been in a similar situation before myself, I would suggest to her that she listen to her gut instincts. If she thinks he’s cheating again, he probably is. Being bipolar has nothing to do with whether or not you are faithful to your spouse. In my opinion, there is no excuse that is valid for being unfaithful, with the possible exception of total amnesia.
Find out whatever she can about his actions, cell phone records, credit card receipts, have him followed for at least 2 weeks. Keep records of everything. Record phone conversations if it’s possible. Tuck anything she finds away for later use. It may never be needed, but in my opinion it’s better to have it an not need it than to need it and not have it. Be ready to know the truth if there is something to find and if she doesn’t find anything, be thankful and tell her to make up his mind about staying in her marriage.
Good luck!


#2

Thanks stepmother. First off, I agree 100% about being faithful, there is no excuse for cheating. She seen a lawyer a couple of days ago and he said she could not make him leave, unless he hit her or the kids??? This bed and board thing is interesting, I will have her look into it. With no disrespect intended toward you, I would like for an attorney to tell me she can leave with no negative effects. Thanks again for your reply, you have been very helpful. TJ

T.Jessup


#3

Hello again, this thing is getting out of control…could a lawyer please tell me about leaving the residence??? Thanks TJ

T.Jessup


#4

Dear bluetracy,

If the situation in her home is unsafe for your stepdaughter or her children she should leave and seek a domestic violence protective order. You state that he has been throwing things and threatening to beat people up, if this behavior is directed at your step daugther that is disturbing and concerning. She would not be doing anything wrong by leaving the residence and this situation. She should make sure that her husband knows how to contact the children.

If he is cheating she should gather as much evidence as she can safely gather, that will impact any claim she may have for alimony. However, her safety and the safety of her children should be the most important concern at this point.

She does not forfeit her rights to the residence or other marital property by leaving. She will still be entitled to half of the marital property.

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.


#5

Thank You So Much Helena, The Bed And Board thing, is this a valid avenue in this case and also is it hard to prove in court?? One more thing, is PI evidence allowed in court??? Once again thank you for your help. TJ

T.Jessup


#6

Dear bluetracy,

The difficulty of succeeding in a divorce from bed and board depends on the specific facts of each case. Before making a decision to go that route you should determine if the financial cost and the emotional drain of continuing to live in the same home with her husband while they wait for the courts to resolve this issue is worth it. I would suggest she consult with an attorney to weigh all of her options before making a decision. Evidence from a private investigator is generally admissible in court.

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.


#7

Hello, My name is Tracy…I have a stepdaughter that lives in NC. Two years ago she caught her husband cheating on her and obviously was devastated, but loved him so much she was willing to give him a second chance(spots on leopard). For the last two months he has been acting really weird, and distant, similar to the way he was acting before, when he was cheating. They had been having several fights before Christmas…the family got together on Christmas Eve and they seemed OK together, which I later found out that was just a show, then came Christmas Day, the fighting resumed as it had been for several weeks, the fighting continued on into the night, then they both finally went to sleep. The next morning she woke up and he was gone with only a note stating " he needed to get away for awhile" he finally came home late that afternoon with no real explanation to where he had gone, or why? This only compounded her suspicion about his renewed cheating. Now here is the icing on the cake…He had the Friday before New Year’s off, he up and leaves again…for three days!! and the kicker is he couldn’t stay somewhere close he had to go back to the city he had been working in for the last three months!!! Which by the way I should tell you is 5 to 6 hours away!/!~?? Now, that kinda brings you up to speed on the mind set, and situation here…today they both go to a marriage counseler and was not by his choice, and she tells the counceler about the mysterious disappearing acts he has been pulling and the counseler sides with her about it being not the actions of a married man… Well he hasn’t took the truth very well at all " it’s not his fault", “he didn’t do anything wrong” etc., etc. Finally brings me to my question he has been cursing, throwing things, threatening to beat people up, (he thinks snitched on him), on and on etc. This is not a very good environment for her or the children. Would she be making a mistake to come stay with me until there is a legal separation drawn up??? Please advise, I personally think he is bi-polar, and I don’t really know what he is capable of at this point. Thanks in advance for your help. TJ

  1. P>S> I don’t want her to forfeit rights to the home by leaving…Please advise

T.Jessup