The tension in your home is unbearable. You and your spouse are at each other’s throats. It feels like “The War of the Roses.” Can you move out of the marital residence without any negative consequences? It depends.

If either party will be seeking spousal support, “marital misconduct” by each party is an important consideration. In North Carolina, when deciding whether to order payment of spousal support, a court can consider certain acts of “marital misconduct” that occurred during the marriage and prior to the date of separation. “Abandonment of the other spouse” is specifically included in the definition of “marital misconduct.” “Abandonment” occurs when a spouse 1) brings cohabitation to an end without justification, 2) without the consent of the other spouse, and 3) without the intent of renewing cohabitation. Each of these three distinct elements must be proven for either party to prove “abandonment.” Ordinarily the withdrawing spouse is not justified in leaving the other unless the conduct of the latter is such as would likely render it impossible for the withdrawing spouse to continue the marital relationship with safety, health, and self-respect. Therefore, leaving the house without a good reason may increase your exposure to pay alimony or may affect your ability to collect alimony. However, if a party shows that he or she was compelled to leave home in fear of safety from acts of violence and cruelty, there is no abandonment by the withdrawing spouse.

If possible, talk to an experienced family lawyer prior to moving out of the marital residence. A lawyer can help you evaluate whether moving out will affect your obligation to pay or receive alimony. The determination of “abandonment” as “marital misconduct” is case-specific and requires careful thought before moving. You need to be aware that you may have limited, if any, access to the marital residence and its contents after you leave. Again, consultation with an experienced family lawyer will help guide you about what items you should consider taking with you when you leave and any precautions you may need to take to protect your asset-debt situation. It is best to get your spouse’s consent, optimally in writing, prior to your vacating the marital home.

Your children are another big consideration when deciding whether to move out of the marital residence. If you move out, should you take the kids with you? A court is not going to look favorably upon a party who disrupts the children’s routine without a good reason. If violence is involved, then take every measure to protect yourself and your kids, including moving from the martial residence. If you do not have a good reason to take the kids with you, you need to think carefully before moving out of the house and leaving your children, even if there is no issue of spousal support. A court will look at the children’s routine and the parties’ history of contact with the children when deciding what type of custodial schedule is in the best interests of the children. Therefore, it is risky to move from the marital residence without an agreement, in writing if possible, about custodial time with the children. Unfortunately, there is an accurate adage in family law: “When it comes to custody, possession is 90% of the law.” It doesn’t seem fair, but often it is true. Once a custodial schedule is established, sometimes by default, a court may be hesitant to change it short of a showing that it is not working for the children. Again, consultation with a good family lawyer prior to moving will help you make the best decision for you and your children.

By: Carole Gailor - North Carolina Divorce Lawyer

Gailor, Wallis & Hunt, PLLC is devoted solely to domestic relations litigation; family law including appeals, mediation and arbitration; and criminal matters.

This entry was posted on Wednesday, June 4th, 2008 at 4:31 am and is filed under Separation and Divorce. You can follow any responses to this entry through the RSS 2.0 feed. Responses are currently closed, but you can trackback from your own site.