The civil and polite way to end a marriage is a separation agreement where the parties agree on how to divide assets. Unfortunately, sometimes the only way to get separated in a timely fashion is to move out yourself. Often easier said than done, there are certainly downsides to vacating a martial home such as claims of abandonment, alienating your children, mortgage obligation considerations, and the old adage that possession is 9/10 of the law. Be advised that just because you leave the house and your spouse stays does not mean they can or will make the mortgage payments to prevent foreclosure. The last thing most people need in addition to the usual headache of divorce is a foreclosure and tarnished credit.
My spouse won't move out
An action for divorce from bed and board is basically a judicial separation based on the martial fault of one party. Be warned a divorce from bed and board can sometime take months or years to play out in Court. If the martial fault rises to the level of domestic violence then a DVPO can provide immediate possession of a marital home and evict your spouse.
So when can you change the locks? You can change the locks if your spouse vacates or abandons the martial residence. If they voluntarily move out they can’t just return to do laundry when they feel like it. In North Carolina it is actually a criminal offense to return to a marital home if you have voluntarily left and are not invited to return. This applies even if you are still on the Deed to the house! To do so is a Class 1 misdemeanor offense and is considered domestic criminal trespass.
Evicting a spouse not on lease
Even if your spouse is not on the lease that does not mean you can simply evict your husband or wife. That being said, the landlord may have the right to do so depending on the terms of the lease, but that may include you as well!
Can i change the locks on my spouse?
If your spouse has moved you have the right to change the locks and refuse reentry under the North Carolina domestic criminal trespass statute. If your husband or wife has nor moved out then changing the locks will probably be a waste of money as law enforcement will likely force you to let them back in the residence. Also- unlawfully locking out a spouse from the marital residence who still lives there could really anger your judge in domestic court and lead to a bigger spousal support award for the dependent spouse.
NCGS § 14-134.3. Domestic criminal trespass
(a) Any person who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the complainant and the person charged are living apart; provided, however, that no person shall be guilty if said person enters upon the premises pursuant to a judicial order or written separation agreement which gives the person the right to enter upon said premises for the purpose of visiting with minor children. Evidence that the parties are living apart shall include but is not necessarily limited to:
(1) A judicial order of separation;
(2) A court order directing the person charged to stay away from the premises occupied by the complainant;
(3) An agreement, whether verbal or written, between the complainant and the person charged that they shall live separate and apart, and such parties are in fact living separate and apart; or
(4) Separate places of residence for the complainant and the person charged.
Except as provided in subsection (b) of this section, upon conviction, said person is guilty of a Class 1 misdemeanor.
(b) A person convicted of a violation of this section is guilty of a Class G felony if the person is trespassing upon property operated as a safe house or haven for victims of domestic violence and the person is armed with a deadly weapon at the time of the offense.