Abandonment can be an emotional and devastating occurrence for a family. While there is often little recourse the law offers in cases of family abandonment, the act itself can be useful in divorce proceedings. In addition to being relevant to alimony calculations, abandonment of one's children can significantly limit one's ability to gain custody or visitation upon divorce. However, actually proving abandonment can be difficult.
The first element of abandonment that must be proven is that one spouse ceased cohabitation without justification. If you are able to demonstrate to the judge that your spouse left your shared home, it is his or her responsibility to prove reasonable justification for doing so. Possible justifiable reasons for terminating cohabitation include spouse's substance abuse or violence, but in the absence of these substantial external causes, justification will be difficult to prove.
An individual who terminates cohabitation with the consent of his or her spouse has not committed abandonment. This element is often very easy to prove as it requires only that he or she state that there was no express or implied permission granted for terminating cohabitation. The spouse can rebut this claim if he or she is able to prove that consent was given; however this is difficult to show.
Intent to Renew
The third and final element that must be proven to show abandonment is that the spouse had no intention to renew the cohabitation. This can be proven if the spouse has purchased another house or entered into a new lease without knowledge or consent. Typically, the easiest way to prove this element is by proving secrecy; in other words, proving that the spouse left without leaving any contact information or forwarding address.
If all three elements of abandonment can be proven, the court will take it into consideration when calculating alimony payments. If the abandoned party is the sole earner of the family, it is unlikely that the abandoner will face any alimony payments, even in a for-fault divorce scenario. However, in cases in which the abandoner is the primary earner (as is often the case), alimony payments will often be higher as a result of the abandonment.
It is very difficult to win custody or visitation rights if your spouse can show that you abandoned the family. However, custody considerations are only relevant at divorce proceedings. If an individual abandons his or her spouse but later returns and attempts to win custody, the abandonment will almost always be irrelevant. Therefore, abandoned spouses should ensure that they bring divorce proceedings before the absent parent can return and begin to assert parental rights.