If you are considering separating from your spouse and leaving the marital home, it is important to know that once you move out, moving back in may not be an immediate option.  If you return to the marital home after leaving, you could be convicted of domestic criminal trespass.

Below are the top 5 questions we receive about domestic criminal trespass.

  1. What is domestic criminal trespass in North Carolina?

Our law (N.C. General Statute § 14-134.3)says a person is guilty of domestic criminal trespass if theyare living apart from the complainant and enter a premises (home) occupied by a present or former spouse (or by a person with whom the person charged has lived with as if they were married) after being forbidden to do so or remains after being ordered to leave by the lawful occupant.

To be clear, this crime only applies AFTER you have separated AND AFTER you have been ordered not to return or asked to leave (if you come back to the property after moving out).

It is also important to note that you don’t have to be married to be convicted of domestic criminal trespass.  If you have shared the home and lived as if married, that is enough.  If you are unsure of whether this applies to you contact an experienced Raleigh family law attorney.

  1. What is the punishment for domestic criminal trespass?

Domestic criminal trespass charges should not be taken lightly, as it is a Class 1 misdemeanor in North Carolina with a punishment of up to 120 days in jail if you are convicted.  Charges can be increased to a Class G Felony if the place you are trespassing on is a safehouse or haven for victims of domestic violence and you are armed with a deadly weapon at the time of the trespass. The felony is also very serious as it is punishable by a minimum of 8-19 months’ probation to maximum 47 months in prison and possible fines, depending on your prior record level and aggravating or mitigating factors.

  1. Are there any exceptions to domestic criminal trespass?

If you have a judicial order or written separation agreement which gives you the right to enter upon said premises for the purpose of visiting with minor children, you cannot be guilty of domestic criminal trespass.

  1. What if I own the property and my spouse/significant other does not?

Who legal owns the home/premises is irrelevant to domestic criminal trespass.  The statute only requires that you lived in the home as a married couple.  This doesn’t mean if you move out your ex gets to live in your home forever, but it does mean they can live in the home until you have an agreement or a court order saying otherwise.

  1. How can I avoid charges?

Waiting to move out until you have an executed separation agreement can help resolve potential reentry issues and having a separation agreement that allows you access to the home under various circumstances will be your greatest protection.

If you have already moved out, you can file a claim asking a judge for a court order that returns possession of the home back to you.

Make sure to contact a family law attorney regarding the options that best suit your situation.  At Miller Law Group, we can help find a solution that works best for you. Contact us today to set up an appointment with our family law attorney to discuss what options are available for you.