I’m not sure what a non-abandonment agreement is, but, if you had an agreement that you would have the option of moving back to the marital home 2 months after the separation began if you did not have a separation agreement then I would say you probably can.
If your spouse has an attorney, you should consult one also. Since she has delayed on her end of the agreement then you may not get “bought out” of the home.
Normally, when a spouse moves from the marital home with the intention of separation and eventual divorce, the remaining spouse has the right to change the locks and request that they not return. If you do not have a separation agreement though, this can be tricky. I advise you to at least consult with an attorney and to contact the mortgage company to see what they can do about refinancing into your spouse’s name alone. You need to get your name off that if you are not going to be living there or at least get a separation agreement making her responsible for payment. It won’t help your credit if she does not pay, but legally, it will hold up in court.
If you were unemployed when you moved out, how is your job now paying 20% less? 20% less than unemployment perhaps? In any event, the language in your non abandonment agreement is ambiguous as it does not define what a suitable job is, and you may be found not to have satisfied the condition precedent to moving back into the residence.
In any event I do not suggest that you move back into the home. It is not a good idea to be living in the same home as your spouse if she does not want you there, this will only cause further problems and inflame the situation. Your wife has hired an attorney, so her intention to pursue the separation is evident.
As long as you did not sign anything which requires you to pay the mortgage, you can stop paying the mortgage in order to support yourself. I do suggest that you hire an attorney moving forward. Before you discontinue payments on the mortgage you will need to discuss the specifics of your case with an attorney who can then advise you more fully of what your options are.
Erin E. Clarey
Attorney with Rosen Law Firm
Raleigh Office
4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax
Charlotte Office
301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Phone: (704)307.4600
Main Fax: (704) 943.0044
Sutton Station
5826 Fayetteville Rd. Suite 205
Durham, NC 27713
Phone: (919) 321-0780
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I left the marital residence 5 months ago. My spouse and I signed a non abandonment agreement stating I would have the option to move back in the house if we did not have a separation agreement and I did not have a suitable job after two months from separating. (I was unemployed at the time) I did find a job paying 20% less, and consider unsuitable - I am looking for other employment. The agreement also stipulated that she not change the keys. She was supposed to buy out the house from me (her parents helping) but has delayed and delayed for no good reason. I gave her notice that I was planning on moving back in. She responded (through an attorney) that it would be criminal trespass per NC Statute NC 14-134.3. I am still paying the mortgage on the house and am beyond broke trying to support two households. Am I safe moving back in?