One of the most prevalent questions we get from people who come into our office is about abandonment. There is a fair amount on confusion and misinformation on the concept of abandonment in North Carolina. A few years ago, one of our associates wrote a post about abandonment in North Carolina and what it can mean for people who are separating or divorcing from each other. This is Part 1 of an updated two-part post on the most common myths and facts about abandonment in North Carolina.
Myth: I can’t move out and separate from my spouse because I heard that I can be sued for abandonment.
Fact: You can’t be sued in North Carolina for abandonment because no cause of action for abandonment exists in the family law context. We still get a lot of people who come into our office and say that they are afraid of moving out because they don’t want to be sued for “abandonment,” or that they have been “abandoned” by their spouse and want to pursue legal action against them.
The actual definition of “abandonment” is as follows: “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.” Morris v. Morris, 46 N.C. App. 701, 266 S.E.2d 381 (1980). The plaintiff has the burden of proof to show that the abandonment was “willful,” and must also prove that their spouse ended their cohabitation without justification.
Myth: Abandonment is a ground for divorce in North Carolina.
Fact: From an actual divorce standpoint, abandonment does not play a role in North Carolina because we are a “no-fault” divorce state. There are only two grounds for divorce in North Carolina: (1) separation for 12 months and (2) incurable insanity. In other jurisdictions that have fault-based grounds for divorce, like our neighbors in South Carolina, the concept of abandonment (also known in some areas as “desertion”) might be an issue.
There’s a big difference between the old saying “Darlin’, I’m going out for cigarettes and I’ll be right back,” and simply separating for the purpose of obtaining a divorce. In order to get a divorce in North Carolina, someone has to move out. And no, sleeping in separate bedrooms in the same house constitutes neither separation nor abandonment. Oakley v. Oakley, 54 N.C. App. 161, 282 S.E.2d 589 (1981).
Part 2 of this post will talk about abandonment as it relates to alimony, property, and children.