Approaching Separation? Five DON’TS

#1: DO NOT date or become emotionally or sexually involved with someone else.

If you have already become sexually or romantically involved with someone other than your spouse without your spouse’s permission, you should immediately consult with a lawyer before discussing it with your spouse or with anyone else. If you have not yet become involved with another person but are thinking about it, don’t. At least, not yet. If you start seeing someone before you and your spouse part ways, you could end up being liable for alimony, or conversely, you could lose your right to alimony (in North Carolina, infidelity by the supporting spouse entitles a dependent spouse to alimony, and infidelity by a dependent spouse acts as a bar to being awarded alimony).

In addition, getting involved with someone else before you separate creates an opportunity for your spouse to file a civil lawsuit against your love interest. There are two claims that can be brought in this situation: Alienation of Affection and Criminal Conversation. Alienation of Affection is a claim that a third party diverted one spouse’s affection for the other to a third party. Criminal Conversation is a claim that a third party had sex with a married person during marriage. The names of these claims may be funny, but the claims themselves are alive and well in North Carolina and have resulted in some very large damages awards. In any case, being sued does not tend to spark warm feelings in the new love interest, so wait to begin something new until after you and your spouse have separated (or better yet, until you have signed a separation agreement).

#2: DO NOT throw your spouse out of the house.

No matter how angry you are, no matter what your spouse has done (including having an affair), you cannot eject your spouse from their home. (If your spouse is violent and you feel that you or your children are at risk of harm, your first priority should be to protect yourselves. In Buncombe County, Helpmate has counselors available to talk about safe ways to do this.) The marital home is almost always owned by both spouses, which means neither spouse has the right to take it away from the other. Packing up your spouse’s belongings and putting them outside makes a great scene in a movie, but in real life, it can result in an order requiring you to leave the home; and it can hurt you in a custody battle if young children witnessed the dramatic scene. Wait until you and your spouse have decided together who will move out. If your spouse will not leave and will not consent to you leaving, talk to a lawyer before you do anything else. There are procedures to force a property separation if your spouse refuses to agree.

#3: DO NOT move out of the house without your spouse’s consent.

This can be considered abandonment and, especially if your spouse is dependent on you for support, can result in an order compelling you to pay spousal support or awarding your spouse the marital home. As in #2, above, you should talk to your spouse and agree on who will move out and how you will handle finances in the short term, while you work on a formal agreement. If your spouse will not agree, you should consult with a lawyer before you take any action.

#4: DO NOT take all the money.

In most cases, the cash on hand is marital property, which means it belongs equally to both spouses, no matter whose name is on the account. You cannot deprive your spouse of access to their own property; and if a court finds that you did so in order to force your spouse to accept an unfair property settlement, it can result in a more favorable outcome for your spouse. You can, however, move half of the marital money in a joint account into a separate account in your own name.

#5: DO NOT spy on your spouse.

This includes putting tracking devices on their car, hacking into their email accounts or other accounts (especially on a device owned by their employer), or following them around with a video camera. You can read and access anything that is left open on a family computer, and anything that was accidentally sent to you is fair game. But anything that requires “hacking” (even if you know or can guess the passwords) is off-limits and can result in civil fines and/or criminal penalties. If you suspect your spouse is cheating, you can hire a private investigator; but in reality, the costs rarely outweigh the legal benefits unless your spouse is cheating with a movie star or a famous politician – and often doesn’t provide much emotional satisfaction, either. And the damage done by the spying can be hard to recover from.



April M. Burt is a transactional lawyer. Katherine Langley and Chad Anderson are trial lawyers. These Asheville-based attorneys focus their practice in the areas of business law, employment law, estate planning, and transactional law. They serve clients in the Western North Carolina communities located in Buncombe, Henderson, Haywood, Madison, and surrounding counties.


Burt Langley, PC | 149 S. Lexington Avenue | Asheville, NC 28801 | P: 828-367-7090 | F: 828-318-8899