Abandonment is a term which is misunderstood and frequently misused by the public. Many people mistakenly believe that simply leaving the marital residence, no matter the circumstances, constitutes abandonment. Our state courts of review have defined it as the act of one spouse bringing the cohabitation of the parties to an end without justification, without the consent of the other spouse, and without intent of renewing it. However, it is not necessary for one spouse to leave the other in order for abandonment to occur. Rather, by cruelly treating one’s spouse or refusing to provide support for one’s spouse, one’s conduct may compel the aggrieved spouse to leave the relationship. The aggrieved spouse would still be entitled under our law to claim the mistreating spouse had committed abandonment. When the conduct of one spouse causes the other to leave, it is called constructive abandonment. Although there is no bright line test for what constitutes constructive abandonment, generally the court considers all of the facts and circumstances of the case to ask whether the withdrawing spouse was justified in leaving. The conduct of the spouse engaged in the constructive abandonment must be willful and make it impossible for the withdrawing spouse to continue the marital relation with safety, health, and self-respect. Finally, mutual agreement to separate cannot typically be alleged as abandonment. The only exception is when a spouse is induced to agree to the separation because of the misconduct of the other spouse.
Maliciously turning the other out of doors
This term makes one imagine an angry spouse putting the other out of their house in the middle of the night and locking the door. The police would certainly be summoned and allow the spouse back in the home. Application of this fault ground may turn on misuse of the domestic violence statutes which allow a party to obtain an emergency order putting someone out of the home on at least a temporary basis. If the allegations which gave rise to the emergency order are later disproved, the aggrieved party may argue that he or she was maliciously turned out of doors.
What if the spouse leaves but then attempts to return to the home and you refuse to allow him or her back in? Is this maliciously turning the other out of doors? Maybe. However, North Carolina has a criminal domestic trespass law which may assist the spouse who remained in the home. For criminal domestic trespass to have occurred you must prove that someone left the home voluntarily, the remaining spouse informed the departing spouse not to return, and then the departing spouse attempted to return. This is a crime. While law enforcement may be reluctant to press the charge of criminal domestic trespass, one may want to consider protecting him / herself against the fault ground of maliciously turning the other out of doors by calling the police in this instance and creating a record of what occurred.
Cruel and barbarous treatment endangering the life of the other
Generally, this fault ground involves violent actions or threats of violent actions. However, our courts have ruled that an actual allegation of physical violence is not required to satisfy the requirements of this fault ground. It is clear that the behavior must be of such significance that it actually endangers the life of the other party.
This fault ground is limited in some ways. It appears that events which took place in the distant past will not qualify as fault grounds. Our courts have advised that the events must be fairly recent. Otherwise, the alleging party has difficulty explaining why he or she continued to reside with the abusive party. That leads to one of the other limitations of this fault ground: condonation of behavior. Condonation is a term in our law which typically means a conditional forgiveness. Although the opposing party has treated you in a cruel and barbarous manner, by your actions you forgive the deeds done against you with the assumption that no such deeds will ever occur again. The actions which may constitute forgiveness include stating that you forgive the other party, continuing to live with that person, and sexual intercourse. It is assumed that you have forgiven the other party because you did not separate or seek immediate remedy for the wrongs done against you. The effect of condonation is that the party who committed the cruel and barbarous treatment may not have the behavior alleged against him or her. Only if the behavior occurs again, may the aggrieved party renew these claims. The standard for the behavior after condonation is much lower, according to our courts, than for the original claims. Finally, the conduct complained of must not have been provoked. Simply put, you cannot start a fight and then complain when the other party responds in kind.
As a side note, the law does allow for a party seeking a divorce from bed and board to seek the remedies available under the domestic violence statute. Should a party seeking the divorce from bed and board allege marital fault which meets the definition of domestic violence, he or she may be entitled to a domestic violence restraining order being entered against the opposing party.
Offering indignities to the person of the other spouse so as to render his or her condition intolerable and life burdensome
“Indignities” is the catch-all term for embarrassing, humiliating, and generally treating the other party poorly. Each situation is different and the court must consider the facts and circumstances surrounding the alleged conduct as well as the overall way of life of the couple. What may constitute indignities in one marriage may be commonplace communication in another. In every case, the behavior must have been intentional and willful or at least consciously by the party committing the acts of indignities. The behavior must also be repeated or continuous in order to meet the standard. In order to render someone’s condition intolerable and life burdensome, our courts have required the actions to occur more than once throughout the marriage.
Our courts have required a party alleging this fault ground to specifically set forth the circumstances of each claim, the conduct of the complaining party, and an assertion that the complaining party has taken no actions to provoke this behavior or conduct. It is not sufficient to make a general claim of indignities by the other party. Each instance must be described in order to allow the defending party the opportunity to understand the allegations and adequately respond. In the same vein, the complaining party cannot make this claim if he or she has “unclean” hands. That is, one who is guilty of the same indignities will have difficulty alleging these indignities against another. Finally, the complaining party cannot provoke the behavior of which he or she complains. To simply allege one has been faithful and dutiful is not enough.
Excessive use of alcohol or drugs
This fault ground requires that the party “becomes an excessive user of alcohol or drugs so as to render the condition of the other spouse intolerable and the life of that spouse burdensome.” The question becomes whether the use is excessive and renders the other spouse’s condition intolerable and life burdensome. As with the other fault grounds, the actions must continue throughout the marriage and each case will be decided by its own facts. There is no bright line test of what constitutes “excessive” use or what “intolerable” and “burdensome” mean. As with the other grounds, a party with unclean hands will have more difficulty in proving his case. Good indications of excessive use may include receipts from the purchase of alcohol on a regular basis, witness testimony, criminal records, medical records, and participation in support groups for alcohol and drug abuse. One may consider testimony from friends, relatives, and health care professionals regarding proving intolerable condition and burdensome life.
Adultery is recognized as the voluntary act of sexual intercourse by a married person with a third party. The behavior must not have come about as a result of connivance.