Abandonment and Custody Issues in North Carolina

Learn how abandonment is treated in North Carolina divorce.

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This article provides an overview of how abandonment is viewed in North Carolina and how it may impact custody and other aspects of your divorce. If you have specific questions about your divorce case, you should contact an experienced family law attorney in your area.

Abandonment as a fault ground for divorce

Divorcing spouses are sometimes concerned because they’ve heard that they will be accused of abandonment if they leave the marital home. They may not know exactly what that means, but it sounds bad.

Although North Carolina still recognizes fault grounds for divorce, including abandonment, spouses don’t need to prove the other’s fault in order to get divorced. Today, many couples seek a divorce based on the ground that they’ve been separated for a certain period of time. So, while courts may consider marital misconduct when making an alimony award, fault and abandonment are no longer the central considerations of divorce cases in North Carolina.

For more information on the grounds for divorce in North Carolina, see Dissolution of Marriage in North Carolina, by Desiree Howard.

Abandonment and custody

Abandonment is not technically an issue in custody matters. However, when one spouse leaves and the children remain, an unintended status quo may be created around the new custody arrangement, meaning that the parent that stays in the home with the kids may be viewed as the custodial parent and if that arrangement seems to be working, a judge may not want to disturb it.

A working status quo can be hard to overcome in a later custody hearing. So, the spouse that wants to leave is faced with a serious dilemma – he or she needs to get out of the marital home because of the psychological discomfort of staying, but leaving may have an unintended effect on custody.

One way to reduce the risk of a negative impact on custody is for divorcing spouses to enter into a collaborative process (such as collaborative divorce or mediation) prior to any unilateral action to leave the marital home. Through this process, the spouses can work out an agreement about the decision for one spouse to leave the home and make sure they both agree it should have no impact on custody. In addition, the spouses or their attorneys can establish a co-parenting plan that’s acceptable to both parents, before anyone moves out. When the spouse moves out of the home after entering into these mutual agreements, the status quo is likely to be less prejudicial when and if it comes time for a judge to make final custody decisions.

Abandonment and alimony

Abandonment is still relevant to alimony decisions, but today its significance is greatly reduced. Abandonment is defined as bringing a couple’s cohabitation to an end: (1) without the intent to renew it, (2) without the consent of the other spouse, and (3) without substantial provocation.

In responding to concerns about abandonment in this context, it can be helpful to consider whether alimony itself is even an issue. If both spouses are self-supporting (meaning both are employed and make similar incomes) alimony may not be a significant concern and no need to worry about how abandonment will affect alimony.

If alimony may be an issue, however, spouses may be able to avoid a charge of abandonment by entering into an agreement that a separation is by consent of both spouses – meaning both spouses agree to the separation. This can be difficult if one spouse opposes the divorce, so these types of conversations may be best had in the context of a couple’s counselor or mediator. The bottom line: when the decision to separate is mutual, even if one of the spouses would prefer not to separate, then there can be no claim of abandonment.

Reentry to marital home after abandonment

Another consideration is the leaving spouse’s ability to reenter the family home. The spouse that stays in the home has the right change the locks, thus preventing the other from returning. The leaving spouse will also lose control over the personal property in the home. The only way to gain access will be to ask the staying spouse’s permission or ask a court to order the staying spouse to allow entry at a mutually agreeable time.

A spouse considering a move from the marital home should understand the negative impact on being able to reenter without permission. On the other hand, in a more collaborative divorce process, couples can usually agree on how they will share access to the marital home. Problems typically arise only when one or the other spouse takes unilateral actions, without letting the other spouse know.

Conclusion

Most charges of abandonment can be avoided if divorcing couples are able to discuss the issues of who should leave the home before it happens and agree that one spouse’s decision to leave should not have an impact on alimony or custody arrangements.

When divorcing couples are constantly fighting and bickering, living together isn’t really ideal, and it can have very negative emotional consequences on children. In these situations, separating is probably the best solution. A spouse that leaves the family home as a result of a well-thought out agreement shouldn’t be punished later.

If you are considering leaving the marital home as the result of a decision to divorce or separate, or if your spouse has left the family home, you should contact an experienced family law attorney for advice.

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