North Carolina Divorce Law and Abandonment

By Rob Jennings J.D.

Far more that simply saying "I do," marriage consists of a bundle of rights and responsibilities. One important responsibility of a married couple is the duty of cohabitation, which means living together as husband and wife. When a party willfully quits cohabiting without cause, he commits abandonment. Although North Carolina is a no-fault divorce state, abandonment still carries a host of far-reaching implications.

In General

Abandonment in a North Carolina divorce isn't just moving out; the act of going to live somewhere else has to be accompanied by the intent to end the marital relationship. Leaving home for military service, for work purposes or to care for a sick relative won't qualify as abandonment unless you plan to never come back. If you leave with a valid purpose and decide to end the relationship while you're away, abandonment can occur when you form the intent to cease cohabitation. This is something the other side can show by your words and actions.

Spousal Support

One of the components of that marital bundle of rights and responsibility is the duty of mutual support. In practical terms, a spouse who commits abandonment runs the risk of destroying her spousal support claims. If she's the supporting spouse and therefore has an potential support obligation instead of a claim of her own, abandonment is marital misconduct that the other side can use against her. This extends to both temporary alimony--"post-separation support" in North Carolina--and permanent alimony. Because of this, North Carolina divorce lawyers usually advise their clients to remain in the marital residence until they can resolve the case.

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Home and Children

Abandonment mostly affects spousal support claims, but it bears on other parts of the case as well. Leaving the children with your ex will devastate any claim that they need to live primarily with you; not only did you abandon the children, the reasoning goes, but you've basically admitted that the other side is fit to take care of them. While you may be able to justify leaving your spouse, you probably won't be able to do the same with leaving the kids. Also, if you vacate the marital residence, expect to lose possession on at least a temporary basis. Since North Carolina divorce cases can drag on for months or even years, this could be a long time.

Defenses

Sometimes leaving your spouse isn't so much a choice as a necessity. In North Carolina, a party can do things to make the other's life so miserable that she essentially forces him out--this is called "constructive abandonment." Drug and alcohol abuse, domestic violence and repeatedly humiliating your spouse in front of others are all "indignities" that can create constructive abandonment. A judge won't hold it against you if you can show that you left for a good reason. Also, your leaving isn't always voluntary. "Malicious turning out-of-doors" occurs when you force your spouse out of the home for no good reason.

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References

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