We see many clients who have undergone a recent separation. Often, one spouse has left the marital residence in a rush and has left some of his or her personal belongings behind. Consequently clients often ask us, "Can I go back to the house and get the rest of my stuff?" The answer is: it depends.
Our concern is that the returning spouse may be committing the crime of Domestic Criminal Trespass. Domestic Criminal Trespass is governed by North Carolina General Statute § 14-134.3 and is a Class 1 misdemeanor which, is punishable by up to 120 days in jail.
Domestic Criminal Trespass occurs when:
1. After having been forbidden to enter or after having been ordered to leave by a lawful occupant of the home
2. A person enters the home or refuses to leave the home
3. The home must be occupied by the person's present or former spouse
4. The spouses are currently living apart
This means that a couple key facts must exist for a spouse returning to the home to be at risk for Domestic Criminal Trespass. First, the spouse who left must have been asked by the spouse who stayed or by someone else who lives in the former marital home to either leave or to not come back. Second, the spouses must be living apart.
Whether the spouses are considered to be "living apart" is a matter of interpretation. A judge will look at a number of factors in making that determination. These include, but are not limited to: how much time has elapsed since the spouse left, whether the spouses had an agreement to live apart, and if the spouses established separate residences.
As with all criminal cases, the State bears the burden of proving each element of the crime beyond a reasonable doubt. However, if you think Domestic Criminal Trespass might apply to your situation, we suggest you consult with an attorney to seek further guidance.