Abandonment vs Separation in NC

What is the name of your state (only U.S. law)? I have a girl friend that wants to leave her husband. She suspects that he is cheating but she doesn't have any real evidence that he is actually doing so. With that said, she still has decided to leave him, she went and got an apt and has moved about 75% of her belongings out, but when she consulted with an attorney about divorcing him, her attorney told her that if she left him that he could have her up for abandonment. So how do one initiate a divorce in the state of North Carolina? Apparently, there is a thin line between abandonment and separation. I know that in most states and at least NC, separation happens once husband and wife begin living separate and apart and at least one of them has the intent to remain separate and apart. How can this happen if when she pursued leaving and got an apt her attorney told her that she needs to be careful and not so quick to leave because he could have her up for abandonment?

Is she the primary breadwinner/financial support for hubby?

Ohiogal said:

Is she the primary breadwinner/financial support for hubby?

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Additionally, are there children involved?

There is 1 child involved, and no she is not the breadwinner, he is primarily.

April10 said:

There is 1 child involved, and no she is not the breadwinner, he is primarily.

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What is she planning to do with the child?

If she leaves and leaves the child with the father, that can significantly impact her custody status.

If she takes the child and the father objects, THAT could create problems.

Better to file for divorce and ask for temporary custody orders.

April10 said:

What is the name of your state (only U.S. law)?
NC

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I have a girl friend that wants to leave her husband. She suspects that he is cheating but she doesn't have any real evidence that he is actually doing so. With that said, she still has decided to leave him, she went and got an apt and has moved about 75% of her belongings out, but when she consulted with an attorney about divorcing him, her attorney told her that if she left him that he could have her up for abandonment. So how do one initiate a divorce in the state of North Carolina? Apparently, there is a thin line between abandonment and separation. I know that in most states and at least NC, separation happens once husband and wife begin living separate and apart and at least one of them has the intent to remain separate and apart. How can this happen if when she pursued leaving and got an apt her attorney told her that she needs to be careful and not so quick to leave because he could have her up for abandonment?[/QUOTE]

I am not an attorney, licensed anywhere.

That being said, I do have some layman's knowledge of family law in that state, as I was a resident there. And went through a contentious divorce.

Abandonment is not going to matter for granting the divorce decree itself. However, in NC, getting the divorce decree is the easiest part of the process.

Where abandonment can have an effect is if one of the parties petitions the court for division of property and/or separate maintenance (includes post-separation support and alimony). Abandonment is considered marital fault, however, it does not mandate or bar any particular claims. (Illicit sexual conduct on only the part of the dependent spouse, bars alimony claims; while illicit sexual conduct on only the part of the supporting spouse mandates an alimony award if a claim is made.) I don't know what the required standard of proof is, though. Abandonment can also affect her position in child custody & visitation.

Also, of note, marital torts (alienation of affection & criminal conversation) are alive and well in NC, so I would be very very very careful what you do. If you boink in NC with this woman, you are a) committing a violation of the criminal code, NC does legally prohibit adultery, although it's not necessarily enforced; and b) opening yourself up to a (possibly expensive) marital tort.

Criminal conversion, right?

(not conversation, surely!)

Dogmatique said:

Criminal conversion, right?

(not conversation, surely!)

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Actually, I think that NC does have some law somewhere about "criminal conversation"...having to do with sexual/unwed/adultery type situations. I cannot remember the details, I just remember how wierd it was that it was called "criminal converstation".

Here is an excerpt from an NC article on the subject:

Criminal Conversation
A lawsuit for criminal conversation is a civil claim for adultery. Unlike alienation of affection, this tort action does protect the fundamental right of exclusive sexual intercourse between spouses.

To prove a cause of action of criminal conversation, the plaintiff must be, or have been at the time, lawfully married and his or her spouse had sexual intercourse with the defendant without consent of the plaintiff during the time of the marriage. The lawsuit must be brought prior to the end of the statue of limitations.

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Well great googly moogy, I did learn something new today!

Thanks, LdiJ.

Might just start researching that out of sheer curiosity.

Dogmatique said:

Well great googly moogy, I did learn something new today!

Thanks, LdiJ.

Might just start researching that out of sheer curiosity.

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Its also a criminal offense in NC to cohabitate without marriage, and it IS enforced in many surprising situations.

NC has some interesting laws compared to the rest of the country.

LdiJ said:

Its also a criminal offense in NC to cohabitate without marriage, and it IS enforced in many surprising situations.

NC has some interesting laws compared to the rest of the country.

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OMG!! that WAS interesting. so putting a "no overnight visitors" clause in a family court order is almost a given in that state?

This is all great information! She is taking their son. She wants to seek sole custody, but he is totally against that and in turn wants to seek joint custody. She doesn't have any real evidence that he is cheating, just her gut feeling, which won't do anything for her in court. I think at this point she just wants out and don't know how to go about doing so based on the whole abandonment thing!

IsabellaSoriano said:

OMG!! that WAS interesting. so putting a "no overnight visitors" clause in a family court order is almost a given in that state?

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Yep**************

And it is also something that can easily be overturned due to the US supreme Court Case that I have discussed on here. Criminal conversation can be seen as unconstitutional. See Lawrence v. Texas.

LdiJ said:

Actually, I think that NC does have some law somewhere about "criminal conversation"...having to do with sexual/unwed/adultery type situations. I cannot remember the details, I just remember how wierd it was that it was called "criminal converstation".

Here is an excerpt from an NC article on the subject:

Click to expand...

Criminal Conversation
A lawsuit for criminal conversation is a civil claim for adultery. Unlike alienation of affection, this tort action does protect the fundamental right of exclusive sexual intercourse between spouses.

To prove a cause of action of criminal conversation, the plaintiff must be, or have been at the time, lawfully married and his or her spouse had sexual intercourse with the defendant without consent of the plaintiff during the time of the marriage. The lawsuit must be brought prior to the end of the statue of limitations.

Also of note is that the defendant in the CC suit must have some connection with the state, otherwise, NC won't be able to perform long-arm jurisdiction. It does not mean, however, that it can't come up during an alimony hearing.