April 27, 2017
There are many times when current spouses, former spouses, or even persons who lived with one another in a marriage-like relationship separate from one another. One spouse is asked or ordered to move out and the other remains in the marital home or on the premises the two occupied together. Often the spouses are separated pending a divorce or one spouse is ordered to stay away from the other for various reasons. While the spouses are separated from one another, there is often uncertainty as to whether the spouse who has moved out of the marital home or premises is free to have access to it. Often times, the spouse that has moved out will return to marital home or premises unannounced or in violation of an order not to do so. These type of cases often arise when the spouses are uncertain about the separation, when there are minor children to the marriage or marriage-like relationship, when the spouse who has moved out has left some belongings at the home, or when the spouse who has moved out shows up at the home to intimidate the remaining spouse. For the spouse who has moved out, if you were married or in a marriage like relationship, entering or remaining in the marital home or on the premises where the other spouse lives, after being forbidden to do so, subjects you to being charged with Domestic Criminal Trespass.
The applicable North Carolina statute for Domestic Criminal Trespass states that “any person who enters after being forbidden to do so or remains after being ordered to leave by the lawful occupant, upon the premises occupied by a present or former spouse or by a person with whom the person charged has lived as if married, shall be guilty of a misdemeanor if the complainant and the person charged are living apart.” NCGS §14-134.3(a).
Therefore to be guilty of Domestic Criminal Trespass, the spouses or persons who were in a marriage-like relationship must be living apart. The statute requires the victim-spouse to show that they are living apart. By law, the following, are evidence that the spouses are living apart: 1) a court order of separation; 2) a court order directing the spouse charged to stay away from the premises; 3) an agreement between the spouses to live separate and apart and the spouse are in fact living separate and apart; or 4) the spouses live in separate residences.
The person charged is not guilty of Domestic Criminal Trespass, if there a court order or written separation agreement between the spouses that the person charged may enter the premises pursuant to the order or written agreement for the purposes of visiting minor children. NCGS §14-134.3(a).
Under the statute, conviction of Domestic Criminal Trespass is a Class 1 misdemeanor. Misdemeanors carries punishment of up to 1 year in jail and fines set by the judge. Punishment can be elevated to a Class G felony, under this statute, if the convicted spouse is trespassing upon property operated as a safehouse or haven for victims of domestic violence and the spouse is armed with a deadly weapon at the time of the crime. NCGS §14-134.3(b).