In order to prove abandonment, a spouse must show that you:
- Willfully brought cohabitation to an end (i.e. you moved out);
- With the intent not to resume it (i.e. when you moved out, you intended to stay out);
- Without the consent of the other spouse; and,
- Without provocation.
There are a couple of important points here. First, if your spouse wants you to leave or consents to you leaving, then they have given you the consent needed for you to leave without abandoning them. That consent will destroy any claim that you abandoned them.
Second, even if your spouse does not consent to you leaving, if they have provoked you into leaving, there is no claim for abandonment.
If, however, you move out without telling your spouse and they didn’t consent or provoke you to leave, then they may be able to argue to a judge that you abandoned them. However, this is very rarely the case.
If you have questions about whether you should leave without a separation agreement or want to know if your spouse has “abandoned you”, then give our office a call at (919) 883-4861 to schedule a no-risk consultation.