Residence is separate property?


#1

I have been married to my wife for 20 years. Last year, my mother died and left me her house. The house was left to me only, not to me and my wife. We moved into the house. Now I would like a divorce. My wife won’t leave the house and I am reluctant to move of out of the house because I feel that it is mine. Will the house still be regarded as separate property even though we have lived here together for the past year? Is there any way to get her to move out?


#2

Another thing - even if the house ends up sold as a part of the divorce, I am fairly certain that if I move out, she will trash the place. What can I do?


#3

*** Not a lawyer ***

The property left to you alone by your mother would have been considered separate property. Unless you gifted it to the marital unit or something else about moving in there changed the situation then it would still be separate property, although your wife might have acquired an interest in the property if you used marital funds to make improvements or pay a mortgage or otherwise increased its value.

As for moving out, do remember that once one of you moves out then that person would not have a right to return without the permission of the remaining spouse (it’s called “domestic criminal tresspass”, and seems to be somewhat unique to North Carolina).

As for forcing her to move out, there’s “divorce from bed and board” about which there’s an article on this site [size=50](I’d link it but linking is disabled)[/size], or I hear you could move out and then immediately ask the courts for an interim distribution of the house back to you. Either way, you’d probably want to consult with a lawyer first. Or you could try negotiating with her to convince her to voluntarily leave, maybe if you offer to give her money for two months’ rent it might work.


#4

There might be a small marital interest in the property based on expenses paid for the upkeep and maintenance, but if you have not deeded the property to the marriage, it is essentially still your separate property. If you cannot come up with an agreement with your wife to get her to move out of residence you should consider seeking a divorce from bed and board. You should seek a consultation with an attorney in your area to discuss whether judges will remove a party from a residence in an action for divorce from bed and board, and if not, helping you decide other ways you can proceed.