In Part 1 of this series, I wrote about some common misconceptions regarding abandonment in North Carolina. There remains a great deal of confusion surrounding abandonment, but it does not play as large a role as most people may think. Remember that the definition of abandonment is: “One spouse abandons the other where he or she brings their cohabitation to an end without justification, without the consent of the other spouse and without intent of renewing it.” In this post, I’ll talk about abandonment in the context of alimony, property rights, and issues with the abandonment of children.
Myth: Abandonment is grounds for alimony in North Carolina.
Fact: If you read the alimony statute for North Carolina, you’ll find that there are 16 factors listed for the court to consider in determining the amount and duration of alimony. Under the first factor, the court can consider “the marital misconduct of either spouse.” Marital misconduct, according to its definition, includes “abandonment of the other spouse.” Abandonment is only one factor out of many that is taken into consideration, but it is not a stand-alone ground for alimony.
Myth: If I separate from my spouse, a judge will think that I’m abandoning them and I will lose all my property.
Fact: In order for the divorce process to begin, someone has to separate and move out away from their spouse. Generally, we advise our clients that if they are the one moving out, they should make sure to take all of their possessions that belong to them or are important to them. If you leave something behind during separation, technically you have physically “abandoned” that property. It’s always much more difficult to try and get back property of which you are no longer in possession. It’s not impossible, and can be done either through a Separation Agreement or an equitable distribution trial, but there are no guarantees what will happen to your property if you leave it behind.
On that note, if you are in the process of separating and you want to keep possession of your house, it’s best if you try and remain in the house for the same reasons stated above.
Myth: If I move out and separate from my spouse, I will lose custody of my children.
Fact: Remember that there’s a big difference between moving out and separating from your spouse while remaining in your child’s life, and abandoning your child. Abandonment of a child can have fairly severe criminal and civil consequences.
Criminal child abandonment in North Carolina is defined as “any man or woman who, without just cause or provocation, willfully abandons his or her child or children for six months and who willfully fails or refuses to provide adequate means of support for his or her child or children during the six months’ period, and who attempts to conceal his or her whereabouts from his or her child or children with the intent of escaping his or her lawful obligation for the support of said child or children.” N.C. Gen. Stat § 14-322.1. Abandonment of a child in North Carolina is a Class I felony. In the civil context, abandoning your child may lead to you losing custody or visitation rights with that child in any future child custody dispute.
It’s always best to consult an attorney before taking any steps that could affect your legal rights, especially regarding issues dealing with children.