What Rights Do I Have if My Husband Abandoned the Home?
By Claire Gillespie
Updated October 16, 2018
If your spouse has left the home and shows no signs of returning, you are probably asking yourself, "My husband abandoned me – what can I do?" Your next step depends on whether you think there is a possibility of saving the marriage. If you and your husband are not both committed, you may have to consider filing for divorce.
Abandonment and Divorce
No-fault divorce is allowed in all 50 states and the District of Columbia, meaning divorce can be granted on grounds such as irretrievable breakdown of the marriage, irreconcilable differences, incompatibility or a period of separation, and neither party is held responsible for the failure of the marriage.
Some states still allow fault divorces, in which one party asks for a divorce on the basis that the other party did something that justifies ending the marriage. Grounds for fault divorces vary by state and include adultery, cruelty, abandonment and mental illness. Abandonment is a ground for fault divorce only in some states, and sometimes it comes with conditions. For example, in Arkansas, abandonment is a ground only if the spouse who has left has the financial ability to support the other spouse and refuses to do so. In Missouri, abandonment is a ground if one spouse abandoned the other spouse for a continuous period of at least six months before the petition for divorce is filed.
Abandonment is sometimes confused with desertion, but they are not quite the same thing. Desertion means your spouse left you with the intention of ending the marriage, while abandonment is simply the act of leaving. In some states, such as Maine, desertion is a grounds for divorce, but abandonment is not.
You cannot file for divorce on the ground of abandonment or desertion immediately after your spouse leaves. In most states, you must wait for at least one year. In Maine, you must wait three years before filing for divorce on the ground of desertion. However, if your spouse leaves, comes back, then leaves again, the time starts from the second time he leaves, not the first.
Some states require certain requirements to be met before accepting abandonment as a ground for divorce, such as proof that you tried to save the marriage. These requirements vary by state.
Abandoned Spouse Rights
A spouse who has been abandoned or deserted and then files for divorce against the other spouse (whether on no-fault or fault grounds) has the same rights in divorce proceedings as any divorcing spouses in the same state. These rights include spousal support, child custody and visitation and equitable distribution of property. If your husband abandoned the home, you can file motions to have any of these matters dealt with before or at the same time as your divorce application. Contact the clerk's office at your local county court to find out how to start the process.
Termination of Parental Rights
If your spouse has also abandoned your children, you may be able to file for a court order terminating his parental rights. A parent who has left a child for a period of time without financial support or without supplying information about when he will return may be considered to have abandoned that child. The minimum length of time that qualifies as abandonment varies by state. For example, in Utah, the minimum time period is six months. Under Utah law, if you want to terminate the parental rights of a spouse who has abandoned you – when no other relevant factors apply, such as child abuse, a history of violent behavior or inability to care for the child – an application for termination of parental rights will be considered only if your spouse has failed to either take physical custody of the child, make arrangements to resume physical custody of the child, or communicate with the child, for a continuous period of six months.
The court never terminates parental rights lightly, and will not typically consider doing so unless it believes that the child will benefit from termination of parental rights. Many factors are taken into account, including the non-custodial parent's past attempts to maintain a relationship with the child, past and current payment of child support and the wishes of the child (depending on his age and reasoning ability/emotional maturity). Above all, the decision must be made in the best interests of the child, taking into account his basic needs, health, welfare, safety and stability.
Claire Gillespie writes about health, science, home and parenting. She has bylines on SELF, SheKnows, The Washington Post, Vice and more.