Dec32025
Family Law Q&A Series

How do I start a separation or divorce while protecting my rights to the home and my time with the children? – North Carolina

Short Answer

In North Carolina, a spouse in this situation typically starts by filing a family court action for child custody (and, if ready, for divorce from bed and board, alimony, and equitable distribution) in the district court of the county where a parent or the children reside. At the same time, the spouse can ask the court for temporary orders addressing access to the marital home and a temporary custody and visitation schedule to protect time with the children. If there is a substantial risk of harm to the children, North Carolina law allows for emergency or ex parte custody relief on a short timeline. The dismissed restraining order does not prevent the spouse from pursuing new custody and property claims in district court.

Understanding the Problem

The question here is narrow: in North Carolina, how can a spouse begin the formal separation or divorce process while also protecting legal rights to the shared home and maintaining time with the minor children. The situation often involves one spouse being excluded from the house after conflict, perhaps following a dismissed domestic violence case, while the remaining spouse changes the locks and restricts access. At the same time, concerns can arise about the children’s environment in that home, such as frequent overnight visitors that make the children uncomfortable. The core decision point is what filings in North Carolina district court can secure temporary and longer-term protection of housing rights and parenting time as separation or divorce begins.

Apply the Law

Under North Carolina law, issues of child custody, possession of the marital residence, and division of property are handled by the district court under Chapter 50 of the General Statutes. Custody orders must serve the children’s best interests, and temporary or emergency custody orders are available when the children face a substantial risk of harm or removal from the state. Property and home issues proceed through equitable distribution and related claims, where the court can allocate use and possession of the marital home while the case is pending.

Key Requirements

  • Custody and visitation claim: A custody action must be filed in the proper North Carolina county, and the court must have jurisdiction over the children; the court then decides legal and physical custody based on the children’s best interests, including safety and stability of each home.
  • Emergency or temporary custody relief: To obtain an ex parte or emergency custody order changing where the children live or limiting contact, there must be a substantial risk of bodily injury, sexual abuse, or removal of the children from North Carolina, or other serious safety concerns.
  • Home and property rights claim: To address the locked-out spouse’s rights to the home, the spouse usually asserts claims tied to the marriage such as divorce from bed and board, postseparation support, alimony, or equitable distribution, and may seek a temporary order for exclusive or shared possession of the marital residence.

What the Statutes Say

Analysis

Apply the Rule to the Facts: In the described situation, the spouse can file a custody action in the district court in the county where a parent or the children reside, asking the court to set a temporary and permanent schedule that protects regular time with the children and addresses concerns about overnight visitors as part of the best-interest analysis. Because the prior restraining order was dismissed, there is no current protective order controlling custody, so a Chapter 50 custody case becomes the main forum for parenting issues. For home rights, the locked-out spouse can join equitable distribution and related marital claims to seek a temporary order regarding possession of the house and to preserve ownership rights while the case proceeds. If the children’s discomfort at the home rises to a substantial risk of harm—for example, unsafe behavior by visitors—an emergency or ex parte custody motion could be considered, but that requires specific, serious risk facts, not mere disagreement with the other parent’s lifestyle.

Process & Timing

  1. Who files: The spouse seeking relief. Where: District Court, Domestic Relations / Civil Division, in a North Carolina county where a parent or the children reside, consistent with custody venue rules. What: A verified complaint for child custody (and, if appropriate, divorce from bed and board, postseparation support, alimony, and equitable distribution), plus any motion for temporary or emergency custody or for temporary possession of the marital home. When: As soon as the spouse decides to formalize separation and needs court-ordered protection of parenting time and home rights.
  2. After filing, the clerk issues a civil summons, and the complaint and any motions must be served on the other spouse under the usual civil rules; the court then sets hearings for temporary custody or emergency relief, often within days to weeks, depending on whether emergency or standard temporary relief is requested and on local scheduling practices.
  3. Following temporary hearings, the case moves toward longer-term or final hearings on custody, equitable distribution, and any support claims; the court ultimately enters written orders that allocate legal and physical custody, set visitation schedules, and divide marital property, including long-term rights to the home.

Exceptions & Pitfalls

  • Emergency or ex parte custody orders are reserved for situations with substantial risk of bodily injury, sexual abuse, or abduction; weak or exaggerated emergency filings can damage credibility and may influence later custody decisions.
  • Failing to file for equitable distribution before the absolute divorce is granted can waive the right to have the court divide marital property, including the home.
  • Assuming that a dismissed domestic violence case controls custody or property rights can be misleading; once dismissed, a new Chapter 50 action is usually needed to secure enforceable orders.
  • Self-help solutions, such as breaking into the locked home or removing the children without a court order, can backfire and be used against a parent in custody and property proceedings.

Conclusion

To start separation or divorce in North Carolina while protecting rights to the home and time with the children, a spouse should file a district court Chapter 50 case in the proper county requesting child custody and, when appropriate, marital claims such as equitable distribution and spousal support. The court can issue temporary and, later, final orders that address parenting schedules, safety concerns, and who may live in or use the marital home. The most critical next step is to file custody and equitable distribution claims before any absolute divorce is entered, so that home and parenting rights remain before the court.

Talk to a Family Law Attorney

If someone is facing a separation or beginning a divorce in North Carolina and is worried about being locked out of the home or losing time with the children, our firm has experienced attorneys who can help explain options, emergency remedies, and deadlines. Call us today at 919-341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for any specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If there is a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Family Law Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.