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So you’re getting divorced, but should you move out? - The Facts on “Abandonment”

August 9, 2016

 

Is it a good idea for me to move out of the house?  If I move out, will it affect my custody case?  Can my wife/husband file for abandonment against me if I move out?  Clients ask me these questions all the time, and for good reason.  There is a lot of misinformation out there regarding the word “Abandonment”.

 

The Answer Is: It Depends
As with so many legal questions, the real answer depends on the facts and circumstances of your particular situation.  There are some general truths however.  First, there is no separate legal claim for “abandonment” in North Carolina.  That means your spouse cannot file against you for abandoning the marriage.  However, abandonment does play a role in certain claims, such as divorce from bed and board, alimony and spousal support (because marital fault is a big part of those claims) and abandonment can also affect your custody case (there is also “abandonment” in the context of child abuse, neglect and dependency cases, but that is not what I am writing about here).  Abandonment in the context of divorce requires proof that one spouse moved out of the marital residence to start living somewhere else without the consent of the other, and that he/she intended to end the marriage.

 

So how can abandonment affect Spousal Support and Alimony?  These claims are based on the reality that in many marriages, there is a supporting spouse who financially supports the household, and that after separation the other spouse continues to be financially dependent on the supporting spouse.  Abandonment by a dependent spouse can eliminate the right to receive support, and by a supporting spouse can require the payment of support.

 

Regarding Child Custody, moving out can be used against you. If you move out and leave the children with your spouse, you will have a hard time convincing a judge that you believe your spouse is an unfit parent or that it is best for them to live primarily with you.  If you have children, I highly recommend having at least a temporary custody agreement or order in place before you move out.

 

It’s also important to understand Domestic Criminal Trespass.  Once you have moved out of the marital home and started living somewhere else, you cannot go back to the marital home without your spouse’s consent.  Even if your name is on the deed.  So if you move out and leave your children in the marital home, your spouse may use that law to prevent you from seeing your children.

 

There are defenses to abandonment.  The most common is to prove that you moved out because your spouse made your life so miserable and intolerable that you had no other choice.  This is called “constructive abandonment”.    Another is to prove that you moved out because your spouse forced you leave against your will, called a “malicious turning out-of-doors”.

 

Perhaps the most practical consideration is how you intend to pay for the marital home and a new residence.  If you move out and your name is on the mortgage, for example, you are still liable for the payment of the mortgage and now also for your new home.  There is no guarantee your spouse will pay any portion of the mortgage, and without an enforceable separation agreement or court order, the court cannot compel him/her to do so.  Also, if you intend to keep the home but move out, you have no way of knowing how long your spouse will remain in the home as negotiations or litigation drags on.

 

To sum it up: If There’s Any Doubt, Don’t Move Out.  Talk to a lawyer about your rights.  At Hinson Family Law, I deal with these issues daily.  Please do not hesitate to call me if you have any questions or concerns about moving out or anything else related to your family.

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