You’ve Decided to Divorce – Now What? Should You Move Out


The holidays are over and you have reached the decision to separate and get a divorce. First, you are not alone as couples that decide to separate often do so right after the Holiday Season. Although you cannot actually file for a divorce until after you have been separated for over a year, couples might be more likely to separate in January than in other months.

There are a few reasons for this. One, people do not want to divorce or separate during the holidays. This may be particularly true if there are children. Some people may see it as giving the children one last family Christmas together before they split up.

Second, the holidays can be an emotional time and this can work on people with troubled marriages in different ways. Some people may find that their feelings of unhappiness become overwhelming during this time. Others might become so caught up in the good feelings of the holidays that they convince themselves that their marriages might work out after all. But after the glow of the holidays, reality can hit – as they return to their usual lives after the highs of the holiday season, they realize that their marriage should come to an end.

If the day has finally come that you and your spouse need to call it quits, you might be wondering what to do next.

Should I move out of your house?
How do I handle my finances while we are separated?
How do I manage custody of the children, including being able to visit them if I leave?
These kinds of questions are not uncommon for people who decide to separate or divorce. Since ending your marriage is complicated, it is important that you address all the questions you have right from the start. By taking a few steps to prepare for your separation, you may not only find the answers to these questions, but you might realize there are other issues you never even dreamed of.

Over the next several days, we will be sharing information on all these topics as you prepare for filing for divorce.

Moving Out (Abandonment):

When it comes to divorce, North Carolina is a no-fault state. That doesn’t mean that certain behaviors won’t weigh heavily on the judge’s mind when it comes to ancillary issues. When contemplating a divorce you first ask yourself – should I move out? One of the behaviors look at if you move out is “abandonment.”

What exactly is abandonment?

Abandonment comes from the idea that cohabitating is one of your marital duties. If one spouse willingly stops cohabitating with the other spouse, that may constitute “abandonment.” But it’s not quite that simple. It has to be proven that the cessation of cohabitation was not warranted, consensual or temporary. It’s a rather complicated topic, and it’s a good idea to discuss these matters with a family law attorney.

What abandonment is not:

Life circumstances may cause you to be away from the family home for long periods at a time. Although your spouse may try to claim this as abandonment, in North Carolina, there are real-life exemptions to being away from the home, such as:

Having to be out of town for work frequently;
Military service; and
Taking care of an ill family member;
The key concept is that the other person leaves the marital home without their spouse’s consent, without justification and with the intent of never coming back.

What can abandonment impact?

It’s important to remember that in a no-fault state such as North Carolina, abandonment is not relevant to the actual divorce proceedings. It just doesn’t make a difference. However, as a type of marital misconduct, abandonment can impact other divorce-related issues, including alimony and custody of the children.

For example, if your spouse left your marital home, then consequently, the children were left in your care. This could prove two things:

You are fit to care for your children. You already knew this, but perhaps your spouse might have tried to say otherwise. But the act of leaving the children with you for an extended period of time proves your point.
Your spouse doesn’t have a good reason for getting primary physical custody of the children. Leaving the children in your exclusive custody already makes this clear. And the judge might also consider that changing anything related to physical custody would disrupt the children’s lives unnecessarily.
Of course, in any custody matter, the children’s best interests will always come first.

If you are concerned about abandonment, you should speak with a lawyer to discuss your situation to see if it applies.