One of the most common questions I get asked about when meeting with potential clients is related to “abandonment”. Clients want to know if they can “get” the other party with “abandonment” or if their spouse can “get” them for “abandonment” if they move out.
In a civil matter such as a divorce proceeding, there is no cause of action for abandonment in North Carolina. This means that a person cannot be sued for “abandonment” in a civil case. This is because North Carolina is a no-fault state, meaning that the reason for a separation is not material to the divorce proceedings. Abandonment has no effect on property division or divorce itself.
However, a person may argue that an abandonment has occurred as a factor for a court to consider when deciding the amount and duration of alimony in a case where alimony is appropriate. In such a case the party claiming abandonment must prove that the other party 1) ended the cohabitation (living together); 2) without justification or provocation; and 3) without the intent to renew the cohabitation. In other words, they must prove that the other party left the home for no legitimate reason and with no intention of returning. As a practical matter, it is rare that a separation is without justification sufficient to rise to the level of abandonment because most parties experience marital difficulties well before separation that justify the separation.
Even if a case for abandonment as an alimony factor can be established, it is only ONE factor for the court to consider and by itself does not serve as grounds for a court to order OR deny alimony.
There is a criminal charge of abandonment in North Carolina, but that requires a party to willfully fail to provide adequate financial support to a dependent spouse or child. Simply leaving the home as part of a separation is not criminal abandonment.
In summary, a person cannot be sued for abandonment in North Carolina. Abandonment only applies in alimony cases, and moving out or otherwise leaving a spouse is not abandonment unless it is done without justification and that is rarely the case.