Abandonment Laws in a Florida Divorce
By Bernadette A. Safrath
Spouses can file for divorce in Florida if at least one of them is a state resident. One spouse must file a complaint in the circuit court located in the county of residence. The complaint must contain the grounds for divorce, one of which is abandonment, also called desertion. The complaint is served on the other spouse, who will have 30 days to submit an answer (60 days if he lives outside the state).
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.
Read More: Divorce Abandonment Law
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.
Bernadette A. Safrath is an attorney who has been writing professionally since 2008. Safrath was published in Touro Law Center's law review and now writes legal articles for various websites. Safrath has a Bachelor of Arts in music from Long Island University at C.W. Post, as well as a Juris Doctor from Touro College.