How Does Abandonment Affect My Divorce Case?
North Carolina law regarding abandonment is complicated. Mitigating factors can prove abandonment, while other factors can support the leaving spouse’s claim to “constructive abandonment.”
We get many questions about abandonment (in the sense of one spouse moving out of the house without the consent of the other spouse): can I file for abandonment, what does it mean if I moved out of the house, will it hurt my custody case?
Here are a few points to consider regarding the issue of abandonment:
- There is no separate claim in North Carolina for abandonment; however, it may be relevant in certain situations such as claims for divorce from bed and board and alimony where fault is a central part of the claim.
- Whether abandonment, as defined in this post, will impact your child custody claim depends on the circumstances as far as why the spouse left, how long they have been gone, have they provided financial support for the family and other considerations. It is important to note that abandonment within the scope of the abuse, neglect and dependency statutes is defined in a different manner from the scope of this blog. You should consult with an attorney in the event you feel the other parent has abandoned your child(ren) and wish to discuss termination of parental rights or a potential stepparent adoption, for example.
- If you are the spouse that moved out of the marital residence and felt you had no other choice, for example you may have been subjected to emotional abuse by your spouse, you can assert a defense to abandonment of “constructive abandonment,” meaning that the other spouse’s behavior made your life intolerable and resulted in your having to move out of the residence due to the negative impact on your life. An attorney can speak with you in greater detail with regard to whether your particular situation would allow for a constructive abandonment defense if you were to move out of the marital residence.
- The spouse moving out of the marital residence should also keep in mind the concept of domestic trespass: when one spouse moves out of the residence and establishes their own new residence, they cannot return to the marital residence without the permission of the spouse remaining in the home. Domestic criminal trespass is a criminal charge, and can apply regardless of how the title to the house is held (meaning if you move out of the marital residence, and your name is on the deed to the home, you still would need permission from the other spouse to return to the marital residence.)This statute can create a barrier for the relocated spouse to seeing the parties’ children if the other spouse will not allow them to come to the residence and keeps their children at home. It is always recommended to try and establish at least a temporary child custody arrangement prior to moving out of the marital residence if at all possible.
- The other issue is if either spouse wishes to retain the house from the division of the marital estate. It can take several months to have a court hearing with regard to the distribution of the marital estate if the parties are unable to reach an agreement. If you are the spouse that wishes to retain the marital residence, but are living elsewhere, that could mean many months staying with a friend or leasing an apartment. Another consideration, for the breadwinner of the family as an example, how he or she can continue to pay the mortgage on the marital residence and rent for their new residence until an agreement or order is entered addressing the ownership/financial responsibility for the marital residence. Conversly, many ask how to get a spouse to move out during divorce. It is important when contemplating a separation that you plan long-term financially for not only paying the mortgage on the marital residence, but for your new residence as well. Until there is a court order in place address how the mortgage is to be paid, there is no mechanism to force a spouse to pay half or the whole amount of the mortgage. You are left with depending on the other spouse’s willingness to contribute or pay in full as well or their concern for preserving their credit and preventing the home from going into foreclosure.
Speak with a Raleigh Divorce Attorney to Know Your Abandonment Rights
There are many other considerations regarding abandonment that you should discuss with a Raleigh attorney regarding your particular situation and how it may impact you. If at all possible, it is better to have an agreement in place prior to separating in the form of a separation agreement and property settlement, or an interim agreement/ non-abandonment agreement if the parties are not in a position to finalize their issues on a long-term basis.
Our Raleigh attorneys have drafted many various agreements such as these, and are ready to answer any questions you may have about abandonment and how it may impact your family. We can be reached by calling our office or by completing the online contact form below.
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