Abandoning the Marital Home: Truth or Myth?

Are you forfeiting any property rights if you leave the marital home?
By leaving the marital home, you are not giving up your right to claim an interest in the home, or the personal property within the home. You do not need to be concerned that by leaving the marital home, you are abandoning your property or forfeiting your interest in that property. It should be noted that once you have left the marital home, you will not have any control over what occurs inside the home, including the maintenance and care of the home, furniture, or your personal belongings. We typically advise clients to take all irreplaceable items with them when they separate, including passport, social security card, birth certificate, family heirlooms, jewelry, and photos, etc. While you do not lose your right to these personal items, your spouse may or may not make it difficult to get them back once you’ve left.

Once you have voluntarily left the marital home, your spouse remaining in the home will have an expectation of privacy, meaning you will not be able to come and go in the marital home as you please. After you voluntarily leave the marital home in North Carolina, it is illegal to enter back into the home without your spouse’s permission. Entering the home without permission is called “domestic criminal trespass,” and is a Class 1 misdemeanor in North Carolina (see N.C.G.S. § 14-134.3). You will still have a legal right to the home, but it will be your spouse’s temporary residence, and you cannot enter at will.

Should I change the locks to force my spouse out of the marital home?
In South Carolina, if you do not have a court order directing your spouse to vacate the home and your spouse is not leaving voluntarily, your spouse can enter back into the home even if you change the locks.

In North Carolina, it is illegal to lock a spouse out of the marital home. The spouse still has a right to be in the marital home if they do not choose to leave voluntarily.  

When can I change the locks on the marital home?
In North Carolina, you can change the locks on the marital home if your spouse voluntarily leaves the marital residence without the intention of returning, or if a court issues a Domestic Violence Protective Order granting you sole access to the marital home.

In South Carolina, you can change the locks on the marital home if there is a court order granting you residency in the marital home. This can be a Decree of Separate Support and Maintenance, or a Divorce Decree.

​If you’re considering leaving the marital home or want your spouse to leave the marital home and need legal advice, please reach out to schedule a consultation with one of our lawyers.  

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