How to File for Divorce With Abandonment
By Teo Spengler
Updated December 27, 2017
If your spouse walks away from the marriage without the intention of coming back, it's called desertion or abandonment. It will not surprise anyone if you decide to end your marriage in these circumstances. But can you use abandonment as a grounds for a divorce? And should you? That depends entirely on where you live since divorce laws vary widely across the country.
If your state allows for divorce based on abandonment, you can file for a fault divorce listing abandonment as the cause. Then you'll need to prove it. You don't have to rely on abandonment to get you the divorce however, since all states now offer an option for a no-fault divorce.
Filing for a Fault Divorce
In yesteryear, all divorces were "fault" divorces. The court only declared a marriage to be legally terminated if one spouse charged and proved the other's bad behavior. Specific types of bad behavior that served as the basis for a divorce ranged from infidelity to insanity, and abandonment was often included.
In modern times, as marriage moved out of the purview of the religious into the realm of a civil matter, legislatures have relaxed the restrictions on divorce. Today, every state offers some form of no-fault divorce based on circumstances like irreconcilable differences. And either spouse is entitled to end a marriage, even when the other spouse is opposed.
Yet some states retain the concept of fault divorces as an alternative to no-fault. Why would anyone want to bring a fault divorce case? In some states, no-fault divorces require a lengthy separation period before the marriage is terminated. In others, a spouse proving fault may get a bigger slice of the asset pie or additional spousal support. Sometimes, of course, a spouse may be motivated by anger or a desire to expose the other person's bad behavior to the world.
Generally, before you file for desertion or abandonment-based divorce, you'll want to consult an attorney. You need to find out whether your state allows fault divorce, whether abandonment is one of the behaviors on which you can base a fault divorce and, if so, whether the extra benefits you might receive are worth the extra hassle.
Only 12 of the states even permit you to file for fault divorces. They are: Alaska, Alabama, Arkansas, Delaware, Georgia, Maryland, New Jersey, New York, North Carolina, South Carolina, Vermont and Virginia. Fault divorce is also recognized in the District of Columbia. That means that if you live in any other state, you cannot file for a fault-based divorce, whether you are charging abandonment or anything else. State laws change frequently so check with an attorney to verify whether your state allows fault divorces.
Is abandonment a grounds for a fault divorce? Desertion was one of the traditional grounds for a fault-based divorce and remains a potential grounds in most states permitting fault divorces. It is defined differently from state to state but usually requires proof that your spouse willfully absented himself from the home for a period of a year.
How to File for Abandonment
If you decide that filing for abandonment in a fault divorce is worth it to you, you will need to use the fault-based divorce forms and procedures. The initial petition/complaint form sets out the parties and your basis for divorce. Check the box indicating that desertion or abandonment is the basis for the action.
You'll need to complete the form carefully with the aid of an attorney unless you are very well-versed in the law. Courts hold individuals representing themselves to the same standard as attorneys in terms of knowing court rules and procedures. And fault-based divorces can be tricky to plead and prove.
You'll also need to prepare a summons, the document that officially informs your spouse of the divorce case. Make appropriate numbers of copies, then take the original and the copies to the court clerk. He will assign your case a case number, file stamp your copies and return several to you, together with the summons copies. Your lawyer will help you arrange to get the petition and summons served on your spouse in one of the ways permitted under law, like hiring a process server to personally hand him the document. The filing fee varies among jurisdictions so know before yu go.
- All no-fault states, like California, do not consider abandonment as grounds for divorce; "irreconcilable differences" as the legal grounds for divorce suffices. Abandonment, however, may be considered in determining alimony, custody, and other legal matters.
- Failure to support a spouse financially, or even refusal to engage in sexual intercourse that is deemed to be part of the marriage contract, can be determined to be "constructive abandonment" in states like New York.
- Every state has family laws that can vary greatly. Check with your local family law court or attorney for state-specific information.
With a Master's in English, a Master of Fine Arts in Creative Writing, and J.D. from U.C. Berkeley's law school, Teo Spengler is up on education. She splits her home time between San Francisco and France. A perpetual student and frequent teacher, she is also a writer and world traveler. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Arizona Central, Fairmont Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites.