While most divorces in North Carolina are of the "no-fault" variety, a charge of abandonment can play a part in the divorce proceedings of some. Those considering leaving their spouses should speak to an attorney first to find out how to protect themselves and their property if they decide to move out.
While "abandonment" of your spouse is not against the law in North Carolina, it can be a factor in certain types of divorces, as well as in a couple's financial settlement. When deciding if a spouse has abandoned the other, a North Carolina judge will consider the following factors: Did the spouse leave without the other spouse's permission? Did the spouse have good reason to leave? Did the spouse leave with no intention of returning? The answer to all three of these questions must be "yes" before one spouse can be considered to have abandoned the other.
The grounds for an "absolute divorce," which allows both partners to remarry other people, are separation for 12 months or proof that one spouse is incurably insane. Abandonment is not legitimate grounds for absolute divorce in North Carolina.
In a bed-and-board divorce, a couple remains legally married (neither can remarry) but keep separate households and finances. As with an absolute divorce, a judge orders a property settlement and decides on an arrangement for child custody. Unlike an absolute divorce, however, the party requesting the bed-and-board divorce must prove that she has grounds for her request. These grounds include abandonment. Some individuals will get a bed-and-board divorce in order to prevent a later accusation of abandonment for the purposes of trying to get alimony or, in the case of military couples, a charge of nonsupport.
Affect on Property and Alimony
If you move out of your home, you may have difficulty getting your property back. If you attempt to re-enter your home later to get your things, you could be charged with domestic criminal trespass. You will have to try to get your things back in your divorce settlement. Additionally, the abandonment of one spouse by the other does not automatically obligate the abandoning spouse to pay alimony to the spouse she left behind. A judge can take the issue of abandonment into consideration when awarding alimony, but it is only one factor in the judge's decision-making process.
Affect on Custody
Like other states, North Carolina courts base custody decisions on the best interests of the child. In doing so, the court looks at a variety of factors, including the stability of each parent and the relationship each parent has with the child. If one parent abandoned his spouse and left the family home, the remaining parent may be viewed as the custodial parent by default. And, if the arrangement is working, the court may be reluctant to change that arrangement once the divorce is final. However, if the parents entered into a custodial arrangement prior to one spouse's departure or that spouse maintained contact with the children while away from the home, he may be able to overcome a court's potential presumption that the current custody arrangement is working and should not be altered.