First, what distinguishes “domestic” trespass from a typical trespass? The answer is that a “domestic” trespass requires that the charged party must have been married or have lived as if married to the party that claimed a trespass occurred, and that the parties are “living apart” at the time of the trespass.
Statute 14-134.3 establishes that a person is guilty of the offense if they have been forbidden to enter or have been ordered to leave the property by the lawful occupant and thereafter enter or refuse to leave the same property, where those premises are occupied by the charged person’s present or former spouse, OR another person with whom the charged person has lived as if married at a time when the charged person and the present or former spouse (or person with whom the charged person has lived with as though married) are living apart.
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Violating this statute can either result in a class 1 misdemeanor or a class G felony. In order to qualify as a felony, the trespass must have occurred on the property of a designated safe house or haven for domestic violence victims, and the defendant must have been found armed with a deadly weapon. The vast majority of cases, however, are misdemeanant.
Consider this set of facts: Husband and Wife separated 2 months ago, with Husband moving out of the jointly owned marital home during the separation period. Wife has asked that the Husband not return to the home. Husband, feeling as though he has the right to enter his own property, returns to the house to pick up some of his belongings. Even though he has a title right to the property (in that his name is on the deed or mortgage), Husband could be charged with domestic criminal trespass, as all the elements of the statute have been satisfied by the facts as given.
There are obvious potential discrepancies as to the “relationship status” and “living apart” elements. Often, parties may not be able to define their relationship on a certain date; further, parties may disagree as to whether they are truly living apart.
If you have been charged with this offense, it is imperative that you seek legal counsel immediately. Depending on your misdemeanor level, you could be sentenced to 120 days in jail, or, if you qualify for a felony, 8 to 31 months in jail. Minick Law’s experienced attorneys are here to help.
Contact us today for a consultation.
Read other related articles from our blog:
How to respond when the other parent is trying to turn your child against you
DSS just took my child. How can a Family Law Attorney help?
Attorney Robert Gilligan is based in Minick Law’s Waynesville office and handles DWI, Criminal Defense, and Family Law cases.