The Great Abandonment Myth in Divorce Cases

“I wanted to move out but I was afraid that I’d lose my house because of abandonment.”
“She left first, so that means she gets nothing and can’t see the kids!”
“Yes, I know he hit me but I was worried if I left I’d get nothing.”

These are actual quotes I’ve heard from my clients over the years. All of them and countless others are scared of a myth that never seems to die out. The big, bad, terrifying word — Abandonment.

If you only read one sentence in this entire article, read this next one. Abandonment, at least in the sense that most people use the word, doesn’t exist in North Carolina. There is no cause of action to sue someone for “abandonment”. If someone leaves their house to start the divorce process that will have almost no impact in their case under the theory of “abandonment”. Abandonment, and how it affects divorce cases, is mostly a great myth that sticks around haunting my clients for years and years. Let me explain the only situations where abandonment will have any bearing on your case.

Defining Abandonment

First, let’s define the term. Within the context of North Carolina Family law, “abandonment” has three 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 cohabitation. Panhorst v. Panhorst, 277 N.C. 664 (1971).

In order to prove abandonment, you must prove all 3 elements. This is a primary reason why it’s almost never proven in court.

Without Justification

Notice how I highlighted “without justification”? That’s because almost everything can be considered a justification in the court system. Drinking, drugs, physical abuse, mental abuse, verbal abuse, financial abuse, adultery, religious differences, family differences, differences with children, almost any reason what so ever that you have as to why you are leaving your spouse can be justification. You see what I mean? It’s such a broad term that anyone, even in a fantastic marriage, could probably find a justification. Add the fact that they must prove the other two elements as well and you have a cocktail for an irrelevant term in the law. In the general sense, leaving your home to start your one year of separation doesn’t meet this legal definition.

For the purposes of this article, when I am talking about abandonment I’m not referring to people who have left their spouse and kids at home, without any word, and have not provided any financial support to them for a period of several years. Those people could have significant legal problems, but are so few and far between that this advice doesn’t apply to them. I’m going to be referring to the legal definition above.

What Impact Does It Have On Your Case?

What impact does that have on your case? Almost none. For argument’s sake, let’s just say they can prove abandonment within the definition that we laid out above. I’ll go through some different scenarios in family law and how abandonment has little to no impact on them:

• Child Custody: The concept of abandonment is not considered in child custody. Moving out and leaving your children at home isn’t something the judge will, by law, hold against you. However, you should remember that if the other parent is primarily taking care of the children and you do not share equal time that can affect the court’s overall decision when deciding custody. It should be noted that, in general, the longer you have gone without seeing your children the worse your case will be. However, “abandonment” as defined above likely won’t have much of an impact on its own if you are attempting to see your children. If you take your children with you when you move out, and if you are giving the other parent reasonable access to them, then it will have no impact.

  I will reiterate my previous point here that abandoning your children, and making no reasonable attempts to see them, can be used to terminate your parental rights. However, in this article, we aren’t really discussing abandoning your family with the purpose of not seeing them, but more moving out with the intent to start divorce proceedings.

• Child Support: It has almost no impact. If the combined marital income is under $250,000 annually then child support follows the guidelines set out by the legislature. You won’t have to pay increased child support for leaving the household to start the separation period. While the total amount you must pay in child support won’t be influenced by the legal concept of abandonment, you should remember that every month that passes in which you don’t pay child support could result in you having to pay that back to the other party.

• Alimony: Abandonment is not grounds for obtaining alimony, at least not abandonment that took place after 1995 (when the legislature updated the statutes to remove it). So, I just can’t look at abandonment and say, “you should pay alimony because you abandoned your spouse”. However, a judge can consider abandonment as marital misconduct when determining the amount of alimony to award or how long the duration should be. It should also be mentioned that it’s very unlikely that this would play a large role in the majority of alimony proceedings as most of these are disputes about finances — One of spouses alleged need of money versus the other sides alleged inability to pay anything. In other words, most alimony disputes boil down to fighting about math more than substance.

• Distribution of the Assets: Abandonment doesn’t normally affect your property rights in the legal sense, but it could have an impact in the practical sense. When you move out if you try to regain entry into the marital residence you could be arrested for domestic criminal trespass under c.g.s. 14-134.3. In other words, when you leave you should be prepared to never go back without court permission or the permission of your spouse. While you don’t forfeit the financial value of any items or property left behind, it can be difficult to prove their existence if you haven’t well documented what was in the house before you left.

In short, don’t be scared to move out. Don’t be scared to leave your house if you’ve decided you need a divorce. Help break the great abandonment myth. Statistically, it’ll have zero impact on your actual case.

Note: This article was written to give general advice to the public. Legal advice should be specific in nature and will change based on every individual case. Nothing in this article should be considered as legal advice that you should apply to your individual case. If you are worried about this issue, or any other, then contact our office to set up a consultation and let a licensed attorney talk to you about your specific situation. For help on trying to effectively work together after separation, make sure to check out this article on co-parenting.