Spousal abandonment and desertion are common grounds used by spouses seeking fault divorces. They refer to one spouse deliberately leaving the marital residence and abandoning the other spouse without any intention of returning.
But California law does not permit fault divorces any longer, so claims of spousal abandonment or desertion as a cause for divorce are not necessary or useful. An abandoned spouse can simply obtain a no-fault divorce in California whether the other spouse reappears and objects or simply refuses to appear.
What Is Fault Divorce?
In yesteryear, a spouse seeking to end a marriage could only do so if the other spouse agreed or if she was able to plead and prove her spouse's bad behavior. States developed lists of bad behavior that would permit divorce. Typical fault grounds for divorce included:
- Abandonment for a certain length of time.
- Prison confinement.
- Inability to have sexual intercourse.
- Extreme emotional or physical cruelty.
The spouse seeking a divorce would have to allege and prove that the other spouse was guilty of some fault behavior. If she couldn't convince the court, she would not be able to divorce.
What Is No-Fault Divorce?
No-fault divorce allows a couple to end their marriage by claiming incompatibility, an irreparable breakdown of the marriage or irreconcilable differences. It is not necessary in a no-fault divorce to establish that a spouse behaved badly, committed adultery or deserted the other spouse.
California was the first state to enact no-fault divorce legislation. This became law in California in 1970, signed into law by then-Governor Ronald Reagan. Throughout the next decades, other states followed California's example. Today, all states offer some form of no-fault divorce, although some states also offer fault-divorce and impose waiting periods or other penalties for no-fault divorce.
Consequences of No-Fault Divorce
The enactment of no-fault divorce laws meant that spouses no longer have to attack each other to obtain a dissolution of the marriage. Nor is agreement by the two spouses a requirement any more. Either spouse can get a divorce based on irreconcilable differences, whether the other spouse agrees or not.
In a fault divorce, the spouse who doesn't want a divorce can prevent it by convincing the court that he is not guilty of the faults the other attributes to him. If proof of his abandonment or adultery fails, the other spouse will not get a divorce. However, in a no-fault divorce, objecting to the other spouse's request for divorce simply proves a claim of irreconcilable differences.
Impact of Abandonment on California Divorce
Since California is a no-fault divorce state and does not permit fault divorces, abandoned spouses have no particular rights. On the other hand, from the day a spouse moves out, the financial relationship of the two changes.
California is a community property state. All property earned by either spouse before a marriage or after a separation is the separate property of that spouse, while all earnings of either spouse during a marriage belong equally to both. This means that, as of the time one spouse moves out of the house, the couple is separated and each of their earnings is their separate property, not community property.
If the spouse who moved out is the sole wage earner of the family, or if she is the higher-earning spouse, the lesser-earning spouse may be entitled to spousal and child support. In fact, the remaining spouse can ask the court to award temporary support while he is waiting for the final order in the case. If the spouse who left the home refuses to appear before the court, the remaining spouse can get a default judgment entered against the spouse who left and obtain full custody of the children.
Read More: California Divorce Law on Abandonment
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