Quite frequently, people ask me about abandonment. It usually comes up in the context of “I want to sue him for abandonment” or “I want to move out, but I don’t want him to be able to sue me for abandonment.” I’ve often wondered where people are getting their information from, because abandonment is something I’m asked about a lot, but in most cases it’s not even an issue. Hopefully, I can clear up some common myths and misconceptions surrounding the word. Below, I’ve listed some facts about “abandonment”:
1) Abandonment is irrelevant to the divorce proceedings. North Carolina is a “no-fault divorce” state, which means that fault is never an issue in the divorce nor a ground for divorce (keep in mind that in North Carolina the divorce order is separate from the orders for equitable distribution and alimony where fault may be important). There are only 2 grounds for divorce in North Carolina: separation for 12 months and insanity.
2) There is no cause of action for abandonment. People often talk about abandonment as though it is something that you can be sued for, like breach of contract or negligence. To the best of my knowledge, there is no tort in North Carolina called abandonment.
3) Within the context of North Carolina Family law, “abandonment” has 3 elements. These elements are (1) one spouse brings cohabitation to an end without justification, (2) without the consent of the other spouse and (3) without the intent of renewing it. Panhorst v. Panhorst, 277 N.C. 664 (1971). In order to prove abandonment, you must prove all 3 elements.
4) Abandonment is not grounds for alimony, but it may be a factor for the judge to consider. I think that generally when people ask whether they can sue for abandonment, what they are really asking is whether they can use the abandonment to help them get alimony. There was a time when abandonment was grounds for alimony in North Carolina. N.C.G.S. 50-16.2 said that “A dependent spouse is entitled to an order for alimony when…the supporting spouse abandons the dependent spouse.” However, 50-16.2 was repealed in 1995 and replaced by N.C.G.S. 50-16.3A. Under 50-16.3A, “In determining the amount, duration, and manner of payment of alimony, the court shall consider all relevant factors, including the marital misconduct of either of the spouses…” According to N.C.G.S. 50-16.1A(3)(b), “marital misconduct” includes “abandonment of the other spouse.” So, all that means is that a judge should consider abandonment in determining the amount and duration of alimony, but abandonment itself is neither grounds for nor a bar to the receipt of alimony. Also, I think it’s important to keep in mind the definition of abandonment, which says that if there is justification for leaving it’s not abandonment.
5) Abandoning your property may affect your rights with regard to that property. In this paragraph, I’m talking about the physical act of going somewhere and leaving your property behind. For one thing, if you move out of your home, your spouse may be able to keep you out of the home under the domestic criminal trespass statute. N.C.G.S. 14-134.3 says that (note – this is a very simplified interpretation and may or may not apply to the specific facts of your situation) if you move out of the marital residence and then try to re-enter you may be guilty of a misdemeanor. Additionally, abandoning your property may (but doesn’t always) make it harder to get that property back in the separation agreement or equitable distribution suit.
6) Abandoning your children may make it more difficult to regain custody, and may even be grounds for termination of your parental rights. Although in a custody dispute between a parent and a third-party the parent generally has a protected status, the parent loses that status if he or she has abandoned the child. And under N.C.G.S. 7B-1111, abandonment is grounds for termination of parental rights.
Hopefully I’ve now cleared up some of the common misconceptions surrounding abandonment. As I’ve said before, the best thing to do is consult with an attorney BEFORE you move out so that you can plan accordingly.