Board Certified Family Law Specialist Matt Arnold answers the question: “What are my custody rights if the other parent moves?”
The decision to end your marriage is one that most couples take seriously. It can take some time to work through disputes and ultimately determine that it is best to seek a divorce. For most couples, the decision is a mutual one. Sometimes, however, one spouse leaves the other behind. When that happens, you may want to obtain a divorce but are unsure of how to go about ending the union. Spousal abandonment is a circumstance that may allow you to get a divorce. To file for absolute divorce in North Carolina, a couple must be separated for a period of at least one year.
In North Carolina, spousal abandonment is a form of marital misconduct. Spousal abandonment is when a spouse leaves the couple’s residence and is living somewhere else without cause, consent, or justification and with no intent to return. Abandonment is sometimes also called desertion. Abandonment can occur when one spouse leaves the home and does not plan on coming back. The spouse may actually move out, taking his or her belongings, or may leave belongings behind. Under this definition, a spouse who is incarcerated has not abandoned the marriage because there was still an intent to return home.
How to Prove Abandonment
To prove abandonment you must be able to show three elements including:
- Spouse left with no justification
- Spouse left without consent
- Spouse does not intend to return
The important thing to remember about abandonment is that the spouse must have left with no intention of coming home. Incarceration, for example, is not abandonment because although the spouse left the marital home he or she did not do so on his own accord and generally intends to return. Sometimes, abandonment is coupled with other types of marital misconduct such as adultery. A spouse may leave the marital home in order to cohabitate with someone else. In some cases, the spouse may no longer provide child support or may cut ties with the children. These matters are all essential to know when the court reviews the issues and makes a determination.
What is the Process for Divorce Due to Abandonment?
The process for obtaining a divorce becomes more arduous when you cannot locate the other party. Although this makes the procedure more difficult, it does not prevent you from getting divorced. You will need to go through some specific requirements to try to find and inform your spouse of your intended divorce. An experienced North Carolina divorce attorney will assist you by providing the guidance necessary to seek a divorce, even if you do not know where they reside. Normally, you must serve your spouse with divorce papers that inform of the divorce and allow for response. If you cannot serve your spouse because you do not know his or her whereabouts, you must take steps to locate the individual and post notices in the newspaper.
While spousal abandonment is not a common occurrence, it is something that does happen from time to time. As the spouse that is left behind, you are likely facing a lot of stress and uncertainty. Do not hesitate to seek legal help with the situation. Get a phone, video or in-person consultation by calling at (704) 370-2828 to speak with our detail-oriented and well-versed lawyers with offices in Charlotte, Lake Norman, and Monroe, please contact Arnold & Smith, PLLC today or find additional resources here.
The family law practice group at Arnold & Smith, PLLC includes four Board-Certified Family Law specialists and one Child Welfare Law specialist, as well as several attorneys with many years of family law experience that are committed to providing a powerful voice to individuals facing the often-tumultuous issues in this area of law. The range of issues our family law clients may be facing include pre- and post-nuptial agreements; separation agreements; post-separation support; child support (both temporary and permanent); absolute divorce; divorce from bed and board; military divorce; equitable distribution of assets; child custody (both temporary and permanent); retirement benefits and divorce; alimony and spousal support; adoption; and emancipation. Because this area of the law is usually emotionally charged and complicated, the family law attorneys at Arnold & Smith, PLLC act with the utmost dedication to ensure that each client understands his or her options, and then act to achieve the best result possible for that client’s particular situation.
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