Can I move back into my house?

[tyandi]

NC
Here is the situation. I am guilty of infidelity 4 1/2 months ago. My wife has asked me to get out of the house so i have been renting an apartment. I have paid the taxes on the house and insurance, she pays the $300 mortgage.

She has been living in Florida for 1 1/2 months and has basically abandoned our house, it's sitting empty?? While I pay for an apartment. My attorney has told me I can move in because she is not in there. But here is my question:

I thought according to NC law, if there is marital misconduct she can keep me out? (look at the article below in my reply) But if she doesnt live in it and is living in florida (even if temporary) can i move in with out the risk of her coming back and kicking me out legally?
I would really like to take care of (our) investment if she isnt. It's almost like she has abandoned the house but is living down in florida with her millionaire family and keeping me out of (OUR) house and forcing me to pay higher rent and two households?

Simply put, can i move back in without her kicking me out when she is living in florida????

[seniorjudge]

NC
Here is the situation. I am guilty of infidelity 4 1/2 months ago. My wife has asked me to get out of the house so i have been renting an apartment. I have paid the taxes on the house and insurance, she pays the $300 mortgage.

She has been living in Florida for 1 1/2 months and has basically abandoned our house, it's sitting empty?? While I pay for an apartment. My attorney has told me I can move in because she is not in there. But here is my question:

I thought according to NC law, if there is marital misconduct she can keep me out? But if she doesnt live in it and is living in florida (even if temporary) can i move in with out the risk of her coming back and kicking me out legally?
I would really like to take care of (our) investment if she isnt. It's almost like she has abandoned the house but is living down in florida with her millionaire family and keeping me out of (OUR) house and forcing me to pay higher rent and two households?

Simply put, can i move back in without her kicking me out when she is living in florida????

What does your lawyer say?

[tyandi]

He says move back in. But again, could she come back from florida and kick me out legally?

I am just scared that i move into my house by myself, I cancel my apartment utilities, tv etc move in and she comes up here and legally kicks me out because of marital misconduct 5 months ago. I'm just wondering if my lawyer is aware of that? But again, because she doesnt live in the house, am I free from that threat?

[weenor]

He says move back in. But again, could she come back from florida and kick me out legally?

I am just scared that i move into my house by myself, I cancel my apartment utilities, tv etc move in and she comes up here and legally kicks me out because of marital misconduct 5 months ago. I'm just wondering if my lawyer is aware of that? But again, because she doesnt live in the house, am I free from that threat?

The reason your lawyer gave you the ok is apparently marital misconduct has nothing to with your current legal rights. At this juncture, the only way that she would have sole legal rights to the property is if a judge said so. No order no problem..course you may end up living together for a while if she comes back, because you won't have the right to kick her out with no court order.

[tyandi]

I have read though that if a mate commits adultery, they can keep the guilty mate out of the house. Do you think my attorney knows this?

I just dont want to undo all i have set up here, go back to my house, get set up there again only to have her come back here in a month or two and get a court order to have me leave?

[tyandi]

This is what I am referrring to - Please decipher this?? PLEASE!!!

WHAT IF ONE SPOUSE WANTS THE OTHER SPOUSE TO LEAVE?
In many instances, one spouse finds that he or she is in an unworkable marriage, but, for whatever reasons, does not want to leave the marital residence. While he or she might want to force the other spouse out of the house, an individual cannot legally do so without the intervention of a third party, such as the court. North Carolina courts have the power to force a spouse out of the marital residence if the other can support a claim for divorce from bed and board, child support, and alimony or postseparation support where fault is shown.
Divorce from bed and board is an antiquated statute and concept, but it still has its place in family law. It is, essentially, a judicially-sanctioned separation. In order for a spouse to prevail in a divorce from bed and board action, he or she must establish that the other spouse has committed one of the following fault grounds:
Abandonment. ( i.e. willfully leaving the marriage without just cause and without the consent of the other spouse)
Maliciously turning the other spouse out of doors.
Cruel or barbarous treatment that endangers the life of the other.
Indignities that render the other spouse's condition intolerable and life burdensome.
Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.
Adultery.
If the court finds that at least one of these factors exists and that the marriage has deteriorated so badly that the only remedy is to force one spouse to leave, it will do so by granting a divorce from bed and board. If the court awards custody of the children to one spouse, a corresponding child support award may include possession of the marital home.The court might even order transfer of title to real property as part of an alimony or child support award. It is very important to note, though, that forcing a spouse to leave the marital home is quite drastic and courts are reluctant to do so unless the evidence strongly supports that course of action. It thus makes sense to consider seeking possession or ownership of the marital home in conjunction with an action for divorce from bed and board, alimony, postseparation support, and/or child support. At the very least, such a claim forces the other spouse to deal with the situation and may lead to expedited resolution of some separation issues.

[weenor]

Without wading through the whole thing...see the part where it says that a spouse cannot throw the other one out with the intervention of a third party- ...then there's the part where it says "if the court finds....

So your wife could go before the court and ask that you be thrown out of the house because of your adultry and if the judge finds that your adultry is a good enough reason for her to want you out the judge can ORDER you out....

So far on your posts you have not stated that there is a court order...if there is one then you can't go back...if there isn't one, then listen to your lawyer, he's right.

[tyandi]

Well said, but remember there was adultery. responding to "if the court finds"
They can "find" that I committed adultery. ouch.

There is no court order at all. And again she lives in florida. So basically your saying (like the Lawyer) move back in but you may have to move back out?

Also, if she gets a court order, how long of a process would that take?
Based on what I have said, do you think the judge would allow me to stay being she is not there?

[justalayman]

Well said, but remember there was adultery. responding to "if the court finds"
They can "find" that I committed adultery. ouch.

There is no court order at all. And again she lives in florida. So basically your saying (like the Lawyer) move back in but you may have to move back out?

Also, if she gets a court order, how long of a process would that take?
Based on what I have said, do you think the judge would allow me to stay being she is not there?

If you are this worried, maybe you shouldn't move back in. You know how it goes, what if I wash my car tomorrow, could it rain? Of course there is always that possibility so you weigh your options.

If the Mrs. wants to give you the boot, she would have to go to court to do so. Most courts don't like to make a finding without proper evidence unless it is a matter that requires immediate action. If the ex tried to get the order, you would get a chance to argue your side.

[VeronicaGia]

Why don't you speak with your attorney about you moving back into the house and getting an order that she cannot move back in? Why are you assuming you are going to lose the house? Start fighting for your rights to the property and stop letting her dictate (from another state, without a court order) what you can do!

[tyandi]

Good Point?
I am just trying to be respectful of her wishes. But it appears she is just trying to punish me. I never thought that I could get a court order, is that even possible on the grounds I committed? (Adultery) or do you mean because she has left the state I have a right to live in the house until the divorce?

[justalayman]

Let's go backwards a bit here.

Who's name is on the title to the house?
Has anybody filed for legal seperation or divorce?


Has the court placed any temporary orders regarding the occupation of the house?

If so, those orders stand until a new order changes it.

[tyandi]

OK, here are answers:

Who's name is on the title to the house? Both of our names
Has anybody filed for legal seperation or divorce? No, just physically separated
Has the court placed any temporary orders regarding the occupation of the house? NO, we are 7 months away from legally divorcing

basically, no legal action at has taken place. IM curious for your input?

[justalayman]

If nobody has filed for divorce , how can you ever determine you are 7 months away from legally divorcing? A very strange statement.

[tyandi]

Because in NC you have to stay separated 12 months to get divorced.
in 7 months, it will be 1 year (12 months)

I'm sure she can file sooner, but it wont be legal for 7 months.