Abandonment.
written by Lindsay Byers-Wagner
We’ve had quite a few people come to the office confused and worried about moving out for fear that they will be accused of abandoning the marriage and end up in trouble or at a disadvantage. Here’s some of what we’ve recently heard:
I’m interested in separating, but I don’t know where to start. I’m worried my ex will come after me for abandonment if I leave.
I want to separate but I can’t because I make more money so that would be abandonment.
Well he won’t leave. I’m fine to leave but if he doesn’t agree, my friend’s brother and my mom said that’s abandonment. They both went through a divorce so they know. I just don’t want to get in trouble!
She said she wanted to separate but I don’t. She left anyway. She abandoned me! That’s illegal!
We have decided to separate but neither of us want to leave the house because we’ve read that if one of us leaves the house, that’s abandonment.
At the same time, most people know that in order to get divorced in North Carolina, you have to be physically separated and living in a separate space from your spouse for at least a year. Inevitably someone has to leave.
Here’s the thing: It seems as if many people equate a spouse leaving and the feeling of being abandoned to the legal claim of abandonment, but it is important to know that they are not the same.
Abandonment under North Carolina law is more than just leaving your spouse against their wishes.
North Carolina General Statute § 14-322 defines the legal claim for abandonment as occurring whenever one spouse separates from the other without justification, without consent, and with no intent to resume living together again.
Showing a spouse left with no justification is a relatively high burden for a spouse claiming abandonment to prove. North Carolina Law has typically construed “justification” broadly (i.e., lots of things can qualify as justification). For example, in one case a spouse was justified in leaving the marital relationship because they could not continue it for their safety, health, and self-respect. Further, a specific bad act does not have to have occurred in order for a spouse to be justified in leaving.
So what do you do when one spouse wants to separate and the other does not?
Bad news: The NC State Bar says that we can’t give you legal advice on this blog, because the facts of every case are different.
Good news: It is natural to be worried about the right way to do things during all stages of the separation process, but it particularly acute and scary at the beginning when so much remains unknown. If you’re worried about whether leaving would be considered abandonment in your case, give us a call or shoot us an email. We’ve found Collaborative Divorce is a particularly effective process to use when spouses know that separation is coming but are not sure how to move forward. In addition to discussing how to physically separate from your spouse, we can also address issues of cash flow and parenting time during the early stages of the separation process. We’re here to support you.
For more information on abandonment and the separation process, call Gondring Law at 336.724.4488 or email us at info@gondringlaw.com.
