ABANDONMENT IN NORTH CAROLINA: Can I move out? Has my spouse “abandoned” me?

ABANDONMENT IN NORTH CAROLINA: Can I move out? Has my spouse “abandoned” me?

In my years of practice, countless clients have come into my office and expressed a desire to move out of the marital home and separate from their spouse but have not done so because they fear “abandonment.” In the civil context, abandonment has the most significant impact on a spouse's claim for post-separation support and/or alimony. Suppose one spouse, who is dependent on the other spouse’s income to meet their monthly needs and expenses, abandons their supporting spouse. In that case, it can be a basis for denying the dependent spouse any monthly support in the form of post-separation support and/or alimony. 

As it pertains to separation and divorce, abandonment occurs when a spouse brings cohabitation to an end without (1) justification, (2) the consent of the other spouse, AND (3) the intent of renewing cohabitation. For abandonment to be argued, all three (3) elements must be proven by the spouse seeking to show that the other spouse has abandoned them. 

The first element, “justification,” is arguably the most important. When is ending cohabitation with your spouse without their consent justified? Some examples might include physical, verbal, or sexual abuse. If a wife who is dependent on her husband’s financial support to meet her monthly needs and expenses moves out of the marital home because her husband has been physically, verbally, or sexually abusive, her departure is likely justified and will not be a basis for denying her post-separation support or alimony claim. In other words, if a dependent spouse has a good reason to end the relationship in the eyes of the Court, they have not “abandoned” their spouse. 

While there is actual abandonment that occurs when one spouse physically leaves the marital home without the consent of the other spouse and without justification, there can also be “constructive abandonment” that exists while the parties still live under the same roof.  By way of example, “constructive abandonment” occurs when one spouse mentally and physically removes him or herself from the marriage but stays in the marital home or when one spouse makes the other spouse’s life so miserable that he or she essentially renders the other’s life intolerable. Examples of what the North Carolina courts have found to constitute constructive abandonment include, but are not limited to, domestic violence, drug and alcohol abuse, and/or withdrawing entirely from all family related activities (ex. Family dinners, family trips, family outings, etc.). Constructive abandonment can also be used as a defense to any claim against one spouse that they abandoned the other. 

If possible, it is better to have an agreement in place before one spouse moves out of the marital home with the intent not to resume the marital relationship. However, that is not always an available option.

If you find yourself facing a complicated family law matter, it is recommended that you contact an experienced family law attorney to help guide you through the often confusing process. Please contact Routh Law, PLLC, at (704) 519-2744.

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