Abandonment occurs when a spouse brings cohabitation to an end without
- the consent of the other spouse
- the intent of renewing cohabitation.
All three of these elements must be proved by the spouse seeking to show the other spouse’s abandonment. A spouse is justified in leaving the other spouse, however, when the withdrawing spouse cannot continue the marital relation with safety, health, and self-respect.
North Carolina cases also recognize constructive abandonment as marital fault. Constructive abandonment arises when the other spouse does not physically leave the home but, rather, commits affirmative acts of cruelty/neglect or other willful failure to fulfill the obligations of marriage. In fact, this may drive the dependent spouse to leave the home. Understand that the dependent spouse who is forced to leave the home by the other spouse’s misconduct does not abandon the injuring spouse but has, rather, been constructively abandoned.