What Constitutes Abandonment in Divorce?

By Beverly Bird
Abandonment means your spouse left without your consent.

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As of 2010, all states grant no-fault divorces. Neither spouse has to have done anything wrong; spouses can part ways simply by saying that the marriage cannot be saved. But in some marriages, spouses want to cast blame. This can happen because of hard feelings, religious beliefs, or economic factors in states that still consider fault in decisions of alimony and property settlement. Not all states accept abandonment as a ground for divorce, and some make a distinction between abandonment and desertion. To make sure you qualify in your state, consult an attorney.

Criteria

All states that accept abandonment as a ground for divorce require that a certain amount of time has passed since your spouse left you and your home, usually one year. In some jurisdictions, your spouse must also have refused to contribute financial support. For instance, if he left, but sent you money weekly to pay the household bills, you might not qualify. If he leaves for six months, then comes back again for two weeks, the clock must start running again. Abandonment begins from the date a spouse leaves and never returns, and it must also be without your consent to end the marriage.

Proof

It can be easy to prove that your spouse left and never came back if you can prove an alternate address for her, or utility service or a lease in her name. But some states also require that you prove she had no justifiable reason to leave. In those jurisdictions, you would have to provide some proof that you attempted marriage counseling or other reconciliation efforts, but she left anyway. If your spouse can prove that you somehow forced her to leave because of your bad behavior, your divorce becomes contested and the court might dismiss your ground of abandonment.

Repercussions

Grounds of abandonment can impact your custody situation if you are the one who leaves the marriage. When you leave, unless you take your children with you, you are indicating to the court that you trust your spouse to adequately care for them. If you do take your children with you, absent a court order allowing you to, you can face punishment by the court.

Warning

In 2009, the appellate court in New York ruled that abandonment means actually leaving the home. The court denied a divorce on grounds that a spouse had emotionally and “socially” abandoned the marriage by refusing to interact with his wife or have sexual relations with her. State laws generally require that a spouse actually leave the marital home with the intention of ending the marital relationship in order for a divorce on grounds of abandonment to be granted.

About the Author

Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.

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