Dear Cape Fear Family Law:
How can I begin separation without it being considered abandonment if my wife will not leave the marital home? I do not want to lose custody of my children or lose rights to the house.
-Worried, but Ready to Go
Dear Worried, but Ready to Go:
First, consult an attorney. Abandonment is defined as one spouse ending cohabitation without a justifiable reason or the consent of the other spouse. Of course, it must be the intention of the spouse who stops living with their husband/wife for that separation to be permanent at the time of the separation.
You need to prepare yourself financially, emotionally, and legally before you separate. When you leave, if you do not automatically start to pay a reasonable amount of financial support for your children and possibly also to your spouse, you could end up owing her all the back support as well as her attorney fees. An attorney can help you determine the right amount to pay and draft a Separation Agreement and Property Settlement. If you cannot agree on the financial terms or custodial arrangement before you need to leave, an attorney can draft a Non-Abandonment Agreement which will allow you to leave right away.
Next, if your spouse is engaged in marital misconduct, you can retain an attorney to file a claim for Divorce from Bed and Board and ask the court to remove your spouse from the home. Abandonment is one of the grounds for this lawsuit in court, so be careful not to leave the home without consulting an attorney, or you may find yourself sued for this claim.
Finally, if you do move prior to getting a written agreement with your spouse, you need to have a plan in place on how you will share your children’s time. If you cannot agree, your attorney can file litigation to work on getting you a custody schedule as soon as possible.
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information above is available for public viewing and is not intended to create an attorney client relationship with any individual. This answer is provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.