When can I move out on my spouse?

It is not uncommon for clients to fear moving out of the marital home because they do not want to be accused of “abandonment.” In the civil context, abandonment has the most significant impact on a spouse’s claim for postseparation support and alimony. If one spouse, who is dependent on the other spouse’s income to meet his or her monthly needs and expenses, abandons his or her supporting spouse, it can be a basis for denying the dependent spouse any monthly support in the form of postseparation support or alimony.

As it pertains to separation and divorce, abandonment occurs when a spouse brings cohabitation to an end without (1) justification; (2) the consent of the other spouse; AND (3) the intent of renewing cohabitation. In order for abandonment to be argued, all three elements must be proven by the spouse seeking to show that the other spouse has abandoned him or her.

The first element, “justification”, is arguably the most important. When is ending cohabitation with your spouse without his or her consent justified? Some examples might include physical, verbal, or sexual abuse. If a wife who is dependent on her husband’s financial support to meet her monthly needs and expenses moves out of the marital home because her husband has been physically, verbally, or sexually abusive, her departure is likely justified and will not be a basis for denying her postseparation support or alimony. In other words, if a dependent spouse has a good reason to end the relationship in the eyes of the Court, they have not “abandoned” their spouse.

While “actual abandonment” occurs when one spouse physically leaves the marital home without consent or justification, “constructive abandonment” can occur when the parties still live under the same roof. By way of example, “constructive abandonment” occurs when one spouse mentally and physically removes him or herself from the marriage but stays in the marital home, or when one spouse makes the other spouse’s life so miserable that he or she essentially renders the other’s life intolerable. Examples of what the North Carolina courts have found to constitute constructive abandonment include domestic violence, drug and alcohol abuse, or withdrawing completely from all family related activities (ex. family dinners, family trips, family outings, etc.). Constructive abandonment can also be used as a defense to any claim of actual abandonment.

If at all possible, it is better to have a separation agreement in place before one spouse moves out of the marital home with the intent not to resume the marital relationship. However, that is not always an available option.

If you find yourself facing a complicated family law matter it is recommended that you contact an experienced family law attorney to help guide you through the process.

Contact Dozier Miller’s Family Law Team »

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