Q: what would an attorney advise if you are considering a divorce and wanting to move out?
My husband spoke to an attorney and wanted to understand his rights and what he would need to do to start the separation process. Could he move out and it not be considered abandonment? I guess I'm trying to find out if he would have been advised to not leave the house and to do other steps first?
A: I'm not going to speculate on what some other attorney may or may not have told your husband, but I can say that "abandonment" isn't a distinct legal claim and is usually not something I spend a lot of time talking about with clients who have yet to separate. Abandonment might play a small role in custody or spousal support, but it just as equally could be a non-factor.
I always encourage my clients that they should talk to their spouse and see if an agreement can be reached on the property, spousal support, custody, child support, etc. Resolving these things without court action is generally in everyone's best interests.
David Allan King agrees with this answer
A: He would likely be advised not to leave the house without a formal written Separation Agreement in place. However, if either of you wanted to leave, you certainly could - there is no such cause of action as 'abandonment' in North Carolina. However, if either of you did leave and did not contribute to the support of the other, it would likely have some negative impact on things later down the road if the matter had to be resolved in Court. All that said, the best and most affordable way to resolve things is for you and your spouse to sit down and work out something fair and reasonable and have that put into a formal written separation agreement. If you don't know what is fair or how to draft a separation agreement - then hire a family law attorney. A fully comprehensive separation agreement can be done for a flat rate fee of $250 for most average couples. There is no need to pay thousands unless you simply like to waste money. Best of luck.
A: Generally, it is ideal (though not necessarily common) to sign a separation agreement before moving out. Abandonment, among other things, can be used as an accusation of marital misconduct. Legitimate claims of abandonment are rare, but the fear of abandonment claims is more common.
To join in the speculation, his lawyer could have advised him to discuss a separation agreement first. Or, his lawyer could have advised him regarding abandonment, and he could have a concern (even if unwarranted) that leaving would give you that.
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