Hunter & Hein, Attorneys at Law, PLLC, © Copyright 2017.
Written by Bill Hunter, Hunter & Hein, Attorneys at Law, PLLC, 11/30/16
****The following blog written by one of our Charlotte, NC based divorce lawyers is designed to be a brief overview of what can be complex legal scenarios, and is not meant to provide legal advice. When divorcing, it is important to contact an attorney who is licensed in your particular jurisdiction. Our attorneys are licensed to practice divorce law in the state of North Carolina, and practice primarily in Mecklenburg and Cabarrus counties.
Abandonment is one of the most often confused concepts in North Carolina divorce law. Our Charlotte divorce lawyers regularly meet with people who are concerned about abandonment when contemplating moving out of the marital home as part of the separation and divorce process. Abandonment occurs when one spouse (1) ends cohabitation without justification, (2) without consent of the other spouse, and (3) without the intent of moving back in. This naturally creates confusion between separating parties, because in North Carolina, parties are not “separated” until they are living under separate roofs with at least one party intending for the separation to be permanent.
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1. Abandonment does not always require the offending spouse to physically leave the marital residence. Constructive abandonment may be found as a result of affirmative acts of physical or mental cruelty or affirmative acts of a willful nature such as failing to provide adequate support. As such, an offending spouse may be found to have constructively abandoned the other spouse when the parties still live under the same roof. Similarly, if one spouse treats the other with such cruelty as to force the other spouse to leave or flee the marital residence, the non-moving party may be found to have abandoned the moving party.
2. Once one spouse leaves the marital residence, establishes a residence elsewhere, and is told not to return to the marital residence, that spouse is not free to continue to return to the marital residence. If fact, returning to the marital residence after leaving could result in criminal charges under N.C.G.S. 14-134.3, which covers domestic criminal trespass laws in North Carolina. The non-moving spouse is also free to change the locks on the residence once the non-moving party has left, but should work with the moving spouse to allow him or her to retrieve personal belongings or other items of property belonging to or being distributed to the moving spouse.
Two common ways to possibly avoid a successful claim of abandonment against you when vacating the marital home as part of a separation are as follows:
1. Get consent from your spouse. In order for a claim of abandonment to survive, it must occur without the consent of the non-moving spouse. Your spouse may be in agreement with you leaving the marital residence or may be the one pressing the issue. In these situations, consider executing a “non-abandonment agreement,” which is a relatively simple document addressing the intentions of the parties in regards to one party moving out of the marital home, and typically includes an assertion that the non-moving party will not bring a claim of abandonment against the moving party. A non-abandonment agreement may also be included as part of a separation agreement. If the non-moving spouse refuses to sign a non-abandonment agreement, it is important to gather as much evidence as possible (including texts, emails, voicemails, etc.) that may support a finding that the non-moving spouse consented to the move. It is also important to note that an agreement to separate induced by the other spouse’s misconduct does not preclude the complainant from maintaining a claim for abandonment.
2. Make sure your move-out is justified. A claim of abandonment is unlikely to survive if the moving spouse is justified in leaving the marital home. North Carolina case law holds that a spouse is justified in moving out of the marital residence when the conduct of the other spouse is such as would likely render it impossible for the moving spouse to continue in a marital relationship with safety, health, and self-respect. In other words, the actions of the non-moving party must not have reasonably provoked the move by the moving party. There is not an all-inclusive definition of what types of behavior justify abandonment, so these scenarios must be analyzed on a case by case basis. Having justification for a move will not prevent the non-moving spouse from bringing a claim of abandonment, but may serve as a defense against a claim brought.
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3. There is no actual stand-alone claim for abandonment. However, abandonment is a form of marital misconduct and can have a profound impact on certain divorce proceedings. Notably, abandonment may serve as a basis for a divorce from a bed and board claim and may be used as a factor by a judge when determining the length and duration of an alimony award.
Have questions about separation and divorce in Mecklenburg or Cabarrus counties in North Carolina? We can help with all aspects of divorce, including property division, alimony, child custody, and child support. Our attorneys are available to help with drafting separation agreements, negotiating settlements, and/or litigating any of these divorce related items in amicable or highly contested cases. 704-412-1442. We can help.