The basics of separation for stay-at-home parents

The separation process can be especially challenging for stay-at-home parents, usually the dependant spouse. The stay-at-home parent will likely be considered the dependant spouse by North Carolina law if the dependant spouse has little to no income.

The dependent spouse depends upon their supporting spouse to pay the bills for the food, home, etc., which can lead to a lack of control over their life. In the event the dependant spouse intends to separate from the supporting spouse, they should consult an attorney to learn about their many options. The options below are not exhaustive and will not apply to every situation.

In the event the supporting spouse will not leave the marital residence, the dependant spouse and children should seek a temporary home so that a Complaint and Motions can be filed after the parties separate. The temporary home may be required for a couple of days or months. Before leaving the residence, the dependant spouse should make copies of important documents, refrain from arguments, and limit computer activity. It is necessary to shut down social networking pages on the day you leave the residence, and take your computer to a shop to ensure that spyware was not installed by your spouse. However, the dependant spouse should leave immediately in a case of domestic violence and, in this situation, a local legal aid office and shelters for victims will usually provide free assistance.

In an attempt to provide stability to the dependant spouse and children, an attorney can file a complaint, motion for interim distribution, and motion for sequestration. In these documents an attorney can request that the dependant spouse be supported financially, and the Court can order that the supporting spouse be removed from the former marital residence so that the dependant spouse can return to the residence. The Court can order an interim distribution of marital and separate property pursuant to N.C. Gen. Stat. §50-20(i)(1) (Distribution by Court of Marital and Divisible Property), which provides as follows:

(i)(1) Unless good cause is shown that there should not be an interim distribution, the Court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between parties.

For more information about equitable distribution, see the property settlement page on our Website.

se·ques·tra·tion [see-kwes-trey-shun], legal definitions:

1. Seizure of property.
2. A writ authorizing seizure of property.

The order for sequestration is similar to a temporary restraining order. It is a common law remedy that is used on a regular basis in this type of situation. A Judge can order the property to be sequestered with or without the presence of the supporting spouse or opposing counsel. It is highly recommended that the dependant spouse change the locks on the home as soon as they return to the former marital residence. If the supporting spouse returns to the former marital residence, the dependant spouse can request that the police enforce the Court’s Order and eject the supporting spouse from the property. Another option is to file charges for domestic criminal trespass, in which case the accused might be taken to jail. For more information about protective orders, see the domestic violence page on our Website.

A dependant spouse may choose to have an attorney prepare a separation contract or Separation and Property Settlement Agreement (SAPS). These two documents can settle some important issues. The agreement should attempt to maintain the status quo of the current child custody arrangement. For instance, the dependant spouse would maintain primary custody of the children throughout the week, while the supporting spouse visitation on some nights and every other weekend. The amount of custody and/or visitation of the supporting spouse will vary according to their work schedule. This type of custody arrangement can provide a stable environment for the children. Of course, the agreement should provide for interim financial support for the dependant spouse in order to provide a safe home and necessities for the children. The agreement can even contain a clause providing for “Temporary Possession of the Marital Residence.” See the sample separation contract on our Website.

These are a few of the legal options provided for stay-at-home parents and dependant spouses in North Carolina. To learn about additional options, get the free eBook on Separation & Divorce. In all of these cases the children’s best interests and safety should be the primary concerns of the parents.

The above is presented as general information on separation and interim distribution and sequestration. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.