Divorce Abandonment Law
By Beverly Bird
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On the surface, the concept of abandonment seems relatively simple. One spouse leaves the home and the marriage and refuses to return. However, the laws governing abandonment as a divorce ground are a little more complex than that. The spouse who is left behind usually cannot take any action that might imply her consent. If your marriage is on the rocks and your spouse moves out because of that, this usually doesn’t qualify as abandonment.
Availability as a Ground
Not all states accept abandonment as a ground for divorce. As of 2011, at least 14 states and the District of Columbia did not recognize any fault grounds at all. Other states, such as Florida and Indiana, do not include abandonment in their fault grounds. In Arkansas, it is a ground only if your spouse has the financial ability to support you and refuses to do so. Other states refer to abandonment as desertion, and there is a fine legal line between the two. Desertion requires that your spouse left you with the intent of terminating your marriage. Abandonment simply means that he left.
No state allows you to file for divorce the day after your spouse leaves. In most jurisdictions, you must wait at least a year. Maine requires three years. If he leaves, returns, then leaves you again, the clock starts over.
In some states, if you accept financial support from your spouse, you’re condoning his absence and you lose your ability to file for divorce on the ground of abandonment. Some jurisdictions require that you prove to the court that you tried to save the marriage. Many states require that your marriage was healthy and happy when your spouse left. Other laws are more generous, depending on where you live. Your spouse can remain under the same roof with you, but refuse to contribute toward expenses or to engage in marital intimacy. In these jurisdictions, this would qualify as abandonment.
Even if your state recognizes abandonment as a divorce ground, it might not warrant your effort to prove it. All states and the District of Columbia now recognize no-fault divorces where you can simply say that your marriage isn’t working anymore and be done with it. There is usually no waiting period to file on no-fault grounds, so you don’t have to bide your time. If money is an issue, you might be able to get a support order sooner than if you waited out the required abandonment time period. The usefulness of using a fault ground for divorce depends on your particular situation. If your spouse has left you, consult with an attorney to determine your best option. In some states, a judge might possibly award you a disproportionate share of marital property for your suffering if you file for abandonment, but other states do not consider fault at all when dividing property and deciding issues such as alimony.
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.