No one wants to see their marriage break down, but it happens all the time. Sometimes, it’s just a slow progression that results in a respectful, mutual breakup. In other cases, spouses go through a bitter divorce and fight for their custody and assets. But one of the most difficult types of divorce occurs after abandonment in marriage.
When one spouse abandons another, it can be confusing, frightening, and emotionally damaging. If it has happened in your marriage, you might wonder what it means for you, your children, and your future.
Leaving a spouse without cause or justification is discussed under North Carolina law, but it’s not always clear as to what abandonment means for a divorce case. So, what exactly is abandonment in the legal sense, and how can it help or hurt you when you petition the court for an absolute divorce? Here’s what you need to know.
Marital abandonment in a marriage is very different from a standard separation. Separation is a requirement for married couples wishing to get divorced in North Carolina. After one year of living separately, one spouse can file for divorce.
Abandonment is quite different. It is considered a form of “marital misconduct” in North Carolina and is defined as a spouse leaving the couple’s residence and living elsewhere without cause or justification and not intending to return to the marriage. To qualify as abandonment, the abandoning spouse must simultaneously have no justification, no consent from the other spouse to separate, and no intent to move back in.
These three elements are important because they protect people who may need to leave their marriage immediately for their own safety and well-being. If someone is in a dangerous situation and they choose to leave and cease cohabitation for their own safety, they are not “abandoning” the marriage. They are justified in leaving.
Cruelty and other marital misconduct that causes a dependent spouse to leave is also not considered abandonment and is actually known as “constructive abandonment.” This means that one spouse has willfully forced the other spouse out through their actions. Though they are not the one leaving the marriage and the home, they are abandoning their spouse in the eyes of the law.
Abandoned spouses often face great hardship. They may have trouble caring for their children or paying for basic expenses. They may not know where their spouse is. They might wonder how they can proceed with a divorce if they’re not able to discuss the terms of the separation and custody. An experienced North Carolina divorce lawyer can be an advocate and determine the best path forward for abandoned spouses.
Being abandoned is an emotionally difficult experience, but it might not ultimately have much bearing on the divorce proceedings. With “no-fault” being the standard all over the country, abandonment arguments usually don’t come into play these days, although a spouse who leaves with no justification might expect their behavior to factor into support payments and custody matters somewhat.
Proving abandonment can also be a challenge, depending on the situation. Most North Carolina family law attorneys will advise their clients that the concept of marital abandonment does not typically have a major impact on modern divorce cases. With that said, if the abandoning spouse left the remaining spouse and children with no means to support themselves, that could be considered by the court.
Each situation is different, but it’s generally best to assume that marital abandonment won’t be a major factor in a divorce case. The financial situation of the household, adultery (if applicable), and other types of marital misconduct may hold more weight with the court.
Generally, divorces in North Carolina are “no-fault” and occur after the spouses decide to separate mutually. Like most states, it has moved almost entirely away from divorces requiring the assignment of fault, or at least a reason for the divorce.
The “divorce from bed and board” is the exception. It’s a court-mandated separation that allows the party that has been wronged to seek asset division, custody, and support without getting an absolute divorce. In these cases, the court may award property and other assets solely to the filing spouse.
Although a divorce from bed and board might seem exactly the same as an absolute divorce, it isn’t in the eyes of the court. After a divorce from bed and board, spouses who wish to remarry must also get an absolute divorce, despite the fact that many of the logistics have already been settled. This type of divorce case is rare, now that North Carolina has moved to the no-fault system that has been adopted throughout the United States.
The most likely outcome of true abandonment is that it will be used as a factor in support payment distribution. If a supporting spouse is the abandoner, the court might use that in awarding support. If a dependent spouse is the abandoner, they might lose out on any alimony that would otherwise be awarded. Of course, that would only occur if the dependent spouse was not justified and not forced out.
Except for in the case of adultery, the courts in North Carolina have discretion in awarding alimony, child support, and assets. In any divorce, it is always best to reach settlement terms through mediation if possible. Litigating a divorce case is time-consuming, expensive, and emotionally painful.
In abandonment cases, it isn’t always possible to reach agreeable terms through mediation. In these cases, the proceedings can become quite contentious and the abandoning spouse may be difficult to reach. That’s why it’s so important to work with an experienced lawyer. They will evaluate your situation and make recommendations about how to proceed.
In the eyes of the court, it’s one thing to abandon your spouse, but it’s quite another to abandon your children. If a person leaves their marriage and children behind without support or a custody plan in place, they are at risk of losing their parental rights. Regardless of anything else, the abandonment of a child is extremely serious.
Parents are obligated to support their children, period. A formerly dependent spouse could technically support themselves in theory, but not a child. Abandonment could result in the termination of parental rights or make it much more difficult to regain custody.
Although abandonment rarely enters the discussions in divorce proceedings, it does give the deserted spouse some additional rights. North Carolina’s domestic criminal trespass law sometimes allows the “in-spouse” who has remained at the residence to refuse entry to the “out-spouse.”
After committing this kind of marital misconduct, it’s up to the in-spouse to decide if they feel comfortable letting their deserting partner back into the home. If they deny entry and the out-spouse tries to enter anyway, it is within their rights to call the police, which could result in an arrest for trespassing.
A lot of people considering divorce in North Carolina think that marital abandonment carries a lot of weight in court. That’s simply not true—it’s just a popular myth that keeps circulating, probably because abandonment is a big event for people who go through it.
People who are considering leaving their spouses are often afraid they will be charged with abandonment. This almost never happens as there is usually some justification for leaving the marriage. Remember, all three conditions must be met for abandonment as it’s spelled out in the law.
On the flip side, people who have been abandoned by their spouse often believe that this form of marital misconduct is the key to suing and getting more in the way of assets and support. In truth, that’s not really the way it works and the individual circumstances of the finances and dependents will carry more weight.
In short, it’s best not to focus on marital abandonment in your North Carolina divorce case. Don’t count on it as a way to get more money and don’t think it’s subject to severe punishment. Try to focus on keeping things civil and find a lawyer who will advocate for you and your children throughout the process.
Moving on is difficult, especially if you’ve faced marital abandonment. But it’s a good idea to get started on the divorce process as soon as you can, as it can take a while to make all the arrangements. In North Carolina, you must live separately from your spouse for a minimum of one year before divorcing.
Gailor Hunt understands that every situation is different. Our experienced divorce and family lawyers can help you pick up the pieces and understand your rights. They can help you get the assets and support you’re entitled to, whether you are able to go through mediation or have to work things out in the courtroom.
If you’re dealing with marital abandonment or simply considering separating from your partner, you should talk to a North Carolina divorce lawyer as soon as possible. They will help you develop a plan and take the first steps toward a new and improved life. Call 919-367-1512 to speak with an expert attorney today.