Legal separation living in the same house

My wife and I has been legally separated for 3 months now. The first month court ordered her to stay away from the home because of a restraining order that I filed. We agreed to a Rule 65 so she was able to come back to the house, just no type of arguing. But she didn’t come back for 2 months after the order was put in place. We are going through a equitable distribution right now. Will that still happen since we are now residing under the same roof? Are we still legally separated?

If she has returned to the marital residence, it is possible that the one year separation period will restart.

You can still negotiate equitable distribution (the division of the marital assets and debts) while living in the same home, but a court order cannot be entered unless you have separated and the equitable distribution claim was filed after the date of separation.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

So being that she moved back in are we still legally separated? How will the courts view that when we go in front of the judge? What is the worse case scenario? Can he order someone to leave?

a complaining spouse might seek a divorce from bed and board to eject the spouse accused of the marital fault from the marital residence or to support a claim for alimony, postseparation support, child custody, child support, or equitable distribution of property under North Carolina law. In addition, a spouse might seek a decree of divorce from bed and board to settle the spouses’ estate rights.

to support a claim for alimony, postseparation support, child custody, child support, or equitable distribution of property under North Carolina law. Does that mean the judge can make me leave even if she did not prove marital fault?

If your wife moved back into the home and has resumed her residence in the marital residence and resumed the marital duties (joint contributions to the household, financial and non-financial), then it is possible that you are considered no longer separated. The court will be unable to divide the marital property in an equitable distribution hearing as the court would not have jurisdiction. The complaint may have to be dismissed.

The judge can order that one party leave the marital residence if that is the issue that is before the judge that day. One spouse would have to file an action for divorce from bed and board against the other party and allege certain fault grounds. If granted, the judge could order that one spouse not return to the marital residence. A judge would not order a party not at fault to leave the marital residence.

For more detailed information on the claim for divorce from bed and board and a detailed explanation of each of the marital fault grounds, check out our article What is a Divorce from Bed and Board?


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.

OK… I just received 2 court dates. 1st is because I did not do some type of equitable distribution worksheet and 2nd is for discovery… I did not do the worksheet because I am currently in a Chapter 13 bankruptcy and was told that there can’t be any type of equitable distribution because I am in bankruptcy. I was not aware that my bankruptcy would effect anything until this pandemic stopped the court cases so I did not inform the court. I guess my question is can any of this still happen if we are living in the same house?

If you are residing in the same home, then you are likely no longer separated and the action will need to be dismissed. You should inform the judge of this and the fact that you are currently in bankruptcy. The equitable distribution process cannot happen with either of these facts.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here

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 only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.