Table of Contents:
- What Is Considered Abandonment in Divorce Cases in Virginia?
- Ohio Divorce and Abandonment Laws
- Divorce & Abandonment Laws in Georgia
- Abandonment Laws in a Florida Divorce
- North Carolina Divorce Law and Abandonment
- What is Considered Abandonment in Tennessee Divorce Cases?
- California Divorce Law on Abandonment
- Abandonment Divorce Laws in Texas
- Washington State Divorce Through Abandonment Laws
Actual Abandonment or Desertion
If a spouse voluntarily leaves without the intention to return or to continue the relationship, it is actual desertion. If your spouse packs up all of his or her things and leaves, moving into a new home, this is abandonment. In a court a spouse must prove the willful desire or intent to desert as well as the intent to end the marital relationship. If a spouse leaves due to cruelty inflicted by the other spouse, this is not considered actual abandonment.
Divorce due to abandonment is initially granted as a divorce from bed and board.
Constructive abandonment can be grounds for divorce from bed and board even if neither spouse leaves the shared home. If a spouse's behavior is such that it endangers the mental or physical health of the other, or such that it makes continuing the relationship unbearable without harm to the other party, it can be grounds for divorce from bed and board. Withholding of sex or the destruction of the home life can constitute desertion of the marriage, even if one spouse never physically leaves the other.
Divorce from Bed and Board
If there are grounds for abandonment, either constructive or actual, you can file for divorce from bed and board. This is the formal term for a legal separation where neither party may remarry. Each spouse's individual property is protected after a divorce from bed and board, and there is no minimum length of time required after abandonment before filing. Divorce from bed and board functions much like an actual divorce in allowing for spousal and child support.
Filing for divorce from bed and board is the first step to getting a full divorce after desertion. The Virginia court system counts the time after divorce from bed and board is granted toward the minimum time limits on divorce from matrimony after separation.
Divorce from Matrimony
In order to get a divorce from matrimony due to abandonment or desertion in Virginia, you must first be granted a divorce from bed and board. The divorce from bed and board can then be rolled into a divorce from matrimony if requested. If there are no minor children involved and the couple has been living separately for at least six months, a divorce from matrimony may be granted by the court. If there are children involved, the court may require mediation, and the minimum time of separation before divorce is a year. Six months or one year, whichever is applicable, from the date of separation, the court may grant a final decree of divorce from matrimony.
The person initiating a complaint for divorce in Ohio is called the plaintiff or petitioner, and he must have been a resident of the state for a minimum of six months prior to filing.
If a spouse cannot be personally served with a complaint for divorce, Ohio provides for "constructive" service, meaning that service can be made by publication. The law allows that in this case, the court can determine the outcome of all issues with the exception of rulings on property existing outside the state.
Ohio Fault Grounds for Divorce
If spouses agree going in that they are incompatible and that they are not going to quibble about cause, and if they have already resolved all issues between them, this is called a dissolution of marriage in Ohio as opposed to a divorce. Otherwise, Ohio will grant a divorce only once grounds have been established. While these include the no-fault grounds, Ohio also offers nine separate fault grounds. Those not associated with abandonment or desertion are based upon fraudulent actions--either one of the parties already had a spouse at the time the marriage and that spouse is living, or he entered into the union under some other misrepresentation. Adultery, extreme cruelty, habitual drunkenness or the incarceration of the adverse party at the time of filing all serve as fault grounds in Ohio.
Abandonment in Ohio
Three grounds for divorce in Ohio address abandonment issues. One cites the specific absence from the marital home of the defendant or respondent (the party not filing the complaint) for a period of at least one year. Also provided for are grounds of gross neglect of duty, which involves the defendant abandoning the responsibilities of the marriage even if he remains in the home. The incarceration ground can also be considered a form of abandonment in that the adverse party is removed from the home, though for punitive reasons rather than willingly.
General Definition of Abandonment
Most states define abandonment as meaning that a spouse has left the marriage for no reasonable cause and is not intending to come back. In some states, "abandonment" is distinguished from "desertion." The first requires only an absence from the home. The second carries with it the criteria that the act of leaving was intended with the express purpose of ending the marriage. In Ohio, it is sufficient that the defendant has only left the home for a period of one year without citing what his intentions might have been at the time.
Laws Regarding the Appellate Process
If either party is unhappy with the court's decisions, Ohio offers them the right to appeal. However, there must be grounds for an appeal, such as the judge misapplying points of law or abusing his power. The appellate process does not provide for another trial but is basically a rehashing by a different court (the Appellate Division) of the initial judge's interpretation of applicable case law.
According to the divorce laws of Georgia, desertion or abandonment occurs when one party leaves the home with the intention of not returning and ending the marriage. An example of this would be a husband who packs his bags, tells his spouse that the relationship is over and walks out of the door. The minute this happens, a time statute starts tolling, and the divorce can only be granted for this ground if the party stays gone continuously for 12 months or more. If the husband leaves for a few months, returns to try to work things out and then leaves again, the 12-month period resets itself and is calculated from the date when he left for a second time.
Georgia law also recognizes constructive desertion as a form of abandonment. This occurs when one spouse is forced to leave due to the words, behavior and/or actions of the other spouse. An example of this would be if a husband abuses his wife physically, mentally or emotionally, and she must leave in order to keep herself or her children safe. In such a situation, the 12-month period begins tolling the day the wife leaves because she has been forced to leave. However, just like the more straightforward situation of abandonment, if the wife returns and leaves again later, the 12-month waiting period to file for divorce under this ground is reset. Other behavior that can be used to support the grounds of constructive desertion include willful refusal to have sex and otherwise participate fully in the marital relationship.
Abandonment of Mother or Child
While not a factor in every divorce case that has issues of abandonment, Georgia domestic relation laws allow a married father to be charged with abandonment when he leaves and/or effectively stops supporting a child or a pregnant wife. Depending on the facts of the case, such abandonment can be a felony or a misdemeanor.
Proving Desertion in Georgia
Under Georgia divorce law, a party can prove all forms of desertion and abandonment by giving personal testimony corroborated by the testimony of witnesses or by documents showing that the spouse has lived elsewhere for at least 12 months.
There are two types of abandonment or desertion in Florida: constructive and actual. The spouse filing for divorce on abandonment grounds must establish three elements. First, the spouse who left must have done so "willfully and maliciously." This means that the separation cannot be a voluntary agreement between both spouses. Next, the abandonment must continue for 12 uninterrupted months before the abandoned spouse can file for divorce. Lastly, the marriage must be "beyond any reasonable expectation of reconciliation."
Constructive abandonment can occur when a spouse does not leave the marital residence. The most common element of constructive abandonment is one spouse's willful withholding of sex. If the one spouse continuously denies sex to the other and fails to perform other marital responsibilities in the home, the other spouse can seek a divorce on constructive abandonment grounds.
Cruel treatment, including physical or mental abuse, can constitute abandonment as well. A spouse who behaves in a way that endangers the other spouse's healthy and safety is considered to have left the marriage, the main element of constructive abandonment.
A spouse commits actual abandonment or desertion when she packs up all of her personal belongings and leaves the marital home. The abandonment must be voluntary, meaning the other spouse cannot have told the deserting spouse to leave. Additionally, the deserting spouse cannot intend to return to the marital residence.
If the deserting spouse returns with good faith intentions of reconciliation, the clock for the 12 month waiting period stops and one of two things will happen. The abandoned spouse can forgive the deserter and the spouses can begin to repair their relationship. Or, if the abandoned spouse refuses to reconcile, the abandonment waiting period begins again and the deserter will be able to seek a divorce on abandonment grounds 12 months from the failed reconciliation.
Marital misconduct like abandonment will be considered when a court issues an alimony award. If the spouse owing alimony is guilty of abandonment, the court may increase the award as punishment. In the alternative, an award can be lowered if the guilty spouse is the one seeking alimony.
While "abandonment" of your spouse is not against the law in North Carolina, it can be a factor in certain types of divorces, as well as in a couple's financial settlement. When deciding if a spouse has abandoned the other, a North Carolina judge will consider the following factors: Did the spouse leave without the other spouse's permission? Did the spouse have good reason to leave? Did the spouse leave with no intention of returning? The answer to all three of these questions must be "yes" before one spouse can be considered to have abandoned the other.
The grounds for an "absolute divorce," which allows both partners to remarry other people, are separation for 12 months or proof that one spouse is incurably insane. Abandonment is not legitimate grounds for absolute divorce in North Carolina.
In a bed-and-board divorce, a couple remains legally married (neither can remarry) but keep separate households and finances. As with an absolute divorce, a judge orders a property settlement and decides on an arrangement for child custody. Unlike an absolute divorce, however, the party requesting the bed-and-board divorce must prove that she has grounds for her request. These grounds include abandonment. Some individuals will get a bed-and-board divorce in order to prevent a later accusation of abandonment for the purposes of trying to get alimony or, in the case of military couples, a charge of nonsupport.
Affect on Property and Alimony
If you move out of your home, you may have difficulty getting your property back. If you attempt to re-enter your home later to get your things, you could be charged with domestic criminal trespass. You will have to try to get your things back in your divorce settlement. Additionally, the abandonment of one spouse by the other does not automatically obligate the abandoning spouse to pay alimony to the spouse she left behind. A judge can take the issue of abandonment into consideration when awarding alimony, but it is only one factor in the judge's decision-making process.
Affect on Custody
Like other states, North Carolina courts base custody decisions on the best interests of the child. In doing so, the court looks at a variety of factors, including the stability of each parent and the relationship each parent has with the child. If one parent abandoned his spouse and left the family home, the remaining parent may be viewed as the custodial parent by default. And, if the arrangement is working, the court may be reluctant to change that arrangement once the divorce is final. However, if the parents entered into a custodial arrangement prior to one spouse's departure or that spouse maintained contact with the children while away from the home, he may be able to overcome a court's potential presumption that the current custody arrangement is working and should not be altered.
Tennessee Divorce Grounds
According to the Nashville Bar Association, Tennessee domestic relations laws allow state residents to file for a fault-based divorce or a divorce based on irreconcilable differences. In a fault-based divorce, the petitioner can choose from one of the state's 15 fault grounds or the couple can admit to both being at fault.
Tennessee Code Provisions for Abandonment
The Tennessee Code Annotated lists the state's fault grounds for divorce in Section 36-4-101. Under subsection 4, a spouse can file for divorce due to abandonment, defined as the "willful or malicious desertion or absence of either party, without a reasonable cause" lasting for a period of at least one year. Additionally, under subsection 8, an individual may be able to obtain a divorce if she has lived in Tennessee for at least two years and her spouse refused to move to the state to join her.
Proof of Abandonment
According to the Ferrell Law Firm of Memphis, Tennessee, an individual can establish abandonment if he has been living without his spouse for at least one year due to his spouse's intentional choice to leave him. A spouse cannot establish abandonment if she decided to leave. In a divorce case, the petitioner will likely need to present evidence showing his efforts to locate or contact the absent spouse.
Family courts traditionally recognized abandonment, when one spouse leaves the marriage for a certain period of time, as a ground for divorce. Each state had its own divorce laws defining the spousal acts qualifying as abandonment.
Current Family Code
California no longer recognizes abandonment as a ground for divorce, also known as dissolution of marriage, or legal separation. The current Family Code provides only two available grounds for divorce under Sections 2310 to 2313: irreconcilable differences or incurable insanity. The Family Code does not mention abandonment as a specific ground for divorce.
Other Significance of Abandonment
Though abandonment is no longer a way to begin the California divorce process, the term still has meaning within the context of family law. According to the California Courts Self-Help Center, abandonment also refers to a parent's absence or lack of support for a child. Parental abandonment may affect a child custody or visitation dispute.
To file for a fault divorce based on abandonment, the aggrieved spouse must show either that the other spouse left the marital home with the intent not to return or that the spouse left and has been gone for at least one year.
Many people file divorce under “no fault” grounds in which the parties agree that both spouses share in some fault for the breakdown of the marriage. Filing a divorce under fault grounds may likely make the process more acrimonious. In addition, if a spouse files for divorce on fault grounds based on abandonment, the other spouse can counterclaim for another fault ground. However, when the court considers issues in the divorce such as child support, child custody, and the distribution of marital assets, it may consider who is deemed at fault. If one spouse is found to have abandoned the other spouse, it could impact these other issues.
In Texas, five other grounds for fault-based divorce exist. First, one spouse can sue for divorce based on cruelty, in which the other spouse has inflicted unnecessary physical or emotional pain. Second, a spouse can sue for divorce on the grounds of adultery. Third, if one spouse is convicted of a felony and the judge sentences that spouse to one year or more in prison, the other spouse can file for divorce on fault grounds. Fourth, on grounds of living apart, one spouse can sue for divorce if the parties have lived apart for at least three years. The last fault ground, other than abandonment, is when one spouse is confined to a mental hospital.
Please consult a qualified lawyer licensed to practice in Texas to determine how the facts of your situation apply to Texas abandonment divorce law, which is subject to change.
Washington is a no-fault divorce state. This means that the only basis for divorce in Washington is that the marriage is irretrievably broken. A marriage is irretrievably broken when it can no longer be saved, or when both parties in the marriage agree that the marriage is over. If one spouse denies that the marriage is beyond saving, the divorce court must decide whether the marriage is irretrievably broken. At this point, the court will look at all the relevant factors, including whether one spouse has abandoned the other and the prospects for reconciliation. At this point, proof of abandonment can show that the marriage is irretrievably broken.
Division of Property
Abandonment can also be used as a basis for determining how property should be divided during divorce proceedings in Washington. In general, all property acquired during the marriage is community property and must be divided equally. This includes real estate. However, if one parent abandons his spouse and his children in their home, this can be a factor in determining who will receive the home during property division. The spouse that currently resides in a home with the children will most likely be awarded the home in the divorce decree. Therefore, abandonment can make a big difference in property division.
Child Custody and Support
Abandonment might also be a consideration when the divorce court is deciding which parent will have custody of the children. If one parent abandons the children or stops providing support to the home before a divorce, the court will consider that as a custody factor. The court will consider the spouse who stayed with the children to be the primary caregiver. Since the primary caregiver usually gets child custody, abandonment of the home can have a deleterious effect on a spouse's chances of receiving child custody. Abandonment can also play a role in the amount of child support a parent has to pay. If the parent does not provide financial support in the months leading up to a divorce, that parent might have to pay back child support.