If during the separation stage the parties cannot agree on who gets to stay and who has to leave the marital residence, then a party can file a claim for equitable distribution and ask court to distribute the marital residence to you. However, since North Carolina requires the parties to be separated before filing a claim for equitable distribution, the party that wants to keep the home may need to move out of the residence so that they can file the claim, and then ultimately request the court to be distributed the home. Before taking the step to move out of the residence, there are considerations to keep in mind, such as the possibility of the judge finding in favor of the party who remained in the house, or the possibility of being accused of abandonment.
Under North Carolina law, spousal abandonment takes place when one spouse ends co-habitation without their husband or wife’s consent, justification, or the intent to renew co-habitation. If one spouse does not agree to the other spouse’s decision to move out of the marital residence, if there is not a valid reason for moving out of the marital residence, or if one spouse does not plan to ever reside with the other spouse again, then that spouse could be determined to have abandoned their spouse by a court of law. If one spouse committed adultery, or has problems of substance abuse, emotional abuse, or domestic violence, then leaving the marital residence will not be considered abandonment. If one spouse is leaving the residence for an extended period of time such as for work or educational purposes, but plans to return, then they are not considered to have abandoned the marital residence.
While showing abandonment is not required to obtain a divorce in North Carolina, it can be used by a spouse to get a higher alimony award amount or used to show why they should be awarded the marital residence over the other spouse.
In conclusion, before deciding on whether or not to leave the marital residence, you should speak with an experienced family law attorney to learn about all your options, and to help determine the best decision to make. Contact Hatcher Law Group for a consultation with an experienced family law attorney to understanding your rights and options moving forward.