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?
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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.
My next question is concerning the house. We purchased the house while we was married. I did not put my name on the mortgage because of credit purposes. Both of our name is on the deed. I want the house and found a lender that will work with me refinancing. She wants the house as well. Will the judge just give her the house because she is on the mortgage and not me? She has way more debts to pay, like car notes and other bills as well on top of maintaining the house bills. I a $225.00 dollar bill monthly and make $2000. a month
And also about the Bed and Board divorce. Do she need proof of allegations she can make? Or can she say I did something and word of mouth is the proof?
The house is marital property since it was acquired during the marriage and therefore, it can be distributed to you or your wife in equitable distribution. If you and your wife cannot agree who will keep the house, even after attending a mediation session, then the judge will determine for you, or the judge will order that the house be sold.
You can have the house distributed to you regardless of the fact that your name is not on the mortgage.
Your wife can testify under oath as to anything she personally saw, personally heard, or anything she has personal knowledge of. Evidence of what she is saying will be able to back up her testimony and further prove her case. Without that evidence, you are also able to testify as to anything you personally saw, personally heard, or anything you have personal knowledge, and then the judge would have to determine which witness is more credible.
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 so we went to court and she was asking for sole possession of the house. Her lawyer argument was that we are still separated even though we live in the same house in separate rooms and have no chance to reconcile our marriage and the petition was made before she came back because of financial hardship b(COVID 19). The judge denied her sole possession and gave us both 50/50 possession of the house. So in the eyes of the law we are not legally separated anymore. How can I get the case dismissed until we figure out the living arrangements? I can’t continue to miss work going back and forth to court if one of the key factors of a divorce is 1 year of legal separation? Our next court date is for trial.
You would need to file a motion to dismiss and set it for a court date before the same/assigned judge. Your argument would be that you are not separated and therefore, the court does not have jurisdiction to equitably divide the marital property.
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 let me summarize my situation. My wife and I had a argument in Feb and it became physical on her end. I put a order of protection on her and she was not allowed back to the house. We did a rule 65 and she still remained gone voluntarily for another 2-3 months after the ruling giving her permission to come back to the house. Now she is back. We went to a interim ED hearing. She asked for sole possession of the house (without evicting me), but the judge said since we are living under the same roof the judge gave us 50/50 possession of the house. Now we have another hearing this month for ED discovery conference and ED pretrial conference (in which I have no idea of what that is). Reading the definition of legal separation it says: Legal separation occurs, for the purposes of eligibility for divorce, on the date when one or both spouses move into a separate residence with the intent of living apart permanently. My question is the intent word. When she left her intentions was not to come back, but she was forced to because of financial reasons, which was a lie because during that time she did not pay the mortgage, she was still working even though Covid 19 and she was able to pay her attorney in full. Where can I find a format of a motion to file for a dismissal since we are not legally separated in the eyes of the law. I am missing work and will accumulate disciplinary points. Her coming to cancelled the divorce proceeding or can we still continue, just not the ED portion of it?
In my opinion, with these facts, you are not separated due to the fact that you are not living in separate residences and have not lived continuously separate and apart, regardless of her intent several months ago.
You will need to file a motion to dismiss, schedule it for a court hearing (by filing a notice of hearing), and serving both on your wife or her attorney by regular mail. There is no pre-printed form for a motion to dismiss. You will need to draft your own, stating that you are moving the Court to dismiss the other party’s claim for equitable distribution due to the fact that you are not separated.
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.
Is there a case I can cross reference to? Or a law I can site on my motion?
The statute addressing absolute divorce and the one year separation required is N.C.G.S. 50-6.
Case law addressing the intent requirement, which is well-founded in NC law are:
Mallard v. Mallard. 234 N.C. 654, 68 S.E.2d 247 (1951).
Byers v. Byers. 222 N.C. 298, 22 S.E.2d 902 (1942).
Earles v. Earles. 22 N.C. App. 348, 224 S.E.2d 284 (1976).
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.
STATE OF NORTH CAROLINA
COUNTY OF CUMBERLAND
################## CASE NUMBER: 20-CVD-#####
(PLAINTIFF)
VS.
##################
(DEFENDANT)
MOTION TO DISMISS
COMES NOW, DEFENDANT ANTHONY Q. ROBINSON AND RESPECTFULLY MOVES THIS COURT TO DISMISS PLAINTIFFS EQUITABLE DISTRBUTION CLAIM:
A. PLAINTIFFS CLAIM MUST BE DISMISSED DUE TO THE FACT THAT PLAINTIFF (########### ) AND DEFENDANT (##############) IS DWELLING IN THE SAME RESIDENCE (#########).
- TO ESTABLISH EQUITABLE DISTRUBTION PARTIES MUST BE LEGALLY SEPRATED WHICH UNDER THE EYES OF THE NORTH CAROLINA LAW IS: THE DATE HUSBAND AND WIFE MOVE INTO SEPARATE RESIDENCES WITH THE INTENT TO CONTINUE LIVING APART FROM ONE ANOTHER PERMANENTLY. LIVING IN THE SAME HOME IN DIFFERENT BEDROOMS IS NOT BEING PHYSCIALLY SEPRATED. IF REQUIRED SEPRATION DOES NOT EXSIT, THE COURT DOES NOT HAVE THE JURISDICTION TO EQUITABLE DIVIDE MARITAL PROPERTY.
WHEREFORE DEFENDANT RESPECTFULLY REQUESTS THAT PLAINTIFF’S EQUITABLE DISTRBUTION CLAIM BE DISMISSED.
RESPECTFULLY SUBMITTED THIS 17TH DAY OF AUGUST, 2020,
############, PRO SE
####################
####################
####################
EMAIL: ####################
This the motion that I filed. Did i cover all needed bases?
Yes, but be prepared to orally argue your motion in front of the judge.
Make sure you also file a notice of hearing to calendar your motion before the judge (plus any other necessary forms specific to your county, if any) and make sure you have a certificate of service for each document showing that you served it (by regular mail or fax) to the opposing party’s counsel, or the opposing party directly if that party is not represented.
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.
Yes I filed a notice of hearing with the court along with a certificate of service that I sent with the motion to dismiss to my wife attorney. The hearing is schedule after our ED Discovery Confrence and ED Pretrial Confrence. I am going to request that my motion get heard on that day. What exactly is a Discovery Confrence and Pretrial Confrence?
The discovery conference and pretrial conferences are court “meetings” between the parties which ensures that all discovery has been produced and exchanged, determines issues that are contested and for trial, sets deadlines for any discovery issues outstanding, etc. Oftentimes the judge will enter an order that occurs as a result of such conferences.
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.