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Divorce

Guide to the Impact of Abandonment in Marriage on Divorce

Divorce

Guide to the Impact of Abandonment in Marriage on Divorce

Table of Contents

What is abandonment? What can I do if I have been abandoned or accused of abandoning? What impact might abandonment have on my divorce?

Author

Andrea Keith, Esq.

Andrea Keith, Esq.

Managing Partner, Keith & Highland Law, PC

Andrea graduated from Whittier Law School as a Children's Rights Fellow, Dean Merit Scholarship, Law Review and Moot Court Board. She was a junior and senior clerk for the Los Angeles County Public Defender's Office throughout law school. She was a law clerk for the Honorable Judge Ferguson of the Ninth Circuit Court of Appeal. In 2007, she worked as an attorney with the Los Angeles County Public Defender's Office. In 2016, she began her appellate work with the Second, Third, and Fifth District Court of Appeal as well as the California Supreme Court. She has continued that work today and is now in private practice.

Abandonment or desertion, as it is sometimes called, can be complicated in the framework of a divorce proceeding. The dictionary definition of abandonment is the “the act of abandoning…someone” where “abandoning” can be further defined as “to withdraw protection, support or help from[.]” [1] 

Similarly, abandonment in marriage is when one spouse intentionally leaves the family without any intention of returning. This abandonment can be financial, criminal, constructive, or marital/emotional. 

Is abandonment a ground for divorce?

In all states that allow one spouse to file for divorce on fault grounds, abandonment is a ground for divorce. For example, in Utah, abandonment is defined as the “willful desertion of the petitioner by the respondent for more than one year” and it is listed as one of the many “[g]rounds for divorce” in the statute. [2]

Since there are different types of abandonment, the specific type of abandonment will determine how the courts will handle any given case.

Financial abandonment

Financial abandonment is the giving up or withdrawing of financial support from the other spouse. Examples of financial abandonment include the abandoning spouse cutting off all financial assistance without reason or notice or withdrawing access to bank accounts, credit cards, and all finances. 

Criminal abandonment

Criminal abandonment is when one spouse abandons a child failing to provide support, care, or protection for that child. This is considered a criminal matter as there is no situation, other than death or serious bodily injury requiring hospitalization, where one parent is allowed to abandon a child. 

Another form of criminal abandonment is when one spouse abandons a spouse with serious health problems without cause. If Spouse A, for example, is married to a sick and unhealthy spouse (Spouse B)--the definition and degree of “sick and unhealthy” varying by state–Spouse A has a right to leave the marriage but Spouse A may need to continue to financially support Spouse B. Failure to do so can be considered criminal abandonment. In these situations, Spouse A may be granted the divorce but the court may order Spouse A to continue to financially care for Spouse B.

Constructive abandonment

Constructive abandonment occurs when one spouse makes the marriage so intolerable that the other spouse is forced to leave. Intolerable marital conditions can include: physical and emotional abuse, infidelity, the withholding of sex, or no financial support. This is called constructive abandonment because if Spouse Y chooses to end the marriage due to Spouse X’s physical abuse, for example, while Spouse X may not be the one actually leaving the marriage, Spouse X effectively created a situation so intolerable that Spouse Y is forced to end the marriage. Accordingly, Spouse X is liable for constructive abandonment. 

Marital/emotional abandonment

Marital or emotional abandonment typically falls under the category of neglect of marital duty which can be a ground for divorce.  Examples of marital or emotional abandonment can include situations where: one spouse is being emotionally distant, one spouse is not being heard in the marriage, or one spouse is withholding sex. In Jamison v. Jamison, the Virginia court held that the wife’s withholding of sexual privileges without just cause or excuse was willful desertion and contributed to the husband being entitled to a divorce. [3] 

What do you do if your spouse abandons you?

If your spouse abandons you and you want to file for divorce, you should start documenting instances of abandonment. For example, in the case of financial abandonment, document when you realized that you no longer had access to your accounts and for how long and whether you were able to speak with your spouse about it. 

In divorce proceedings, you can, as the abandoned spouse, request spousal support from your spouse. Also, if you have minor children, you can request child support and physical custody of the minor children.

How long does a spouse have to be gone in order to prove abandonment in court?

Though there are some similarities between “abandonment” and “separation,” there is a legal difference for courts between abandonment and separation. Separation can occur when both spouses agree to a move out of the marital property or when spouses are taking a cooling off period to decide if they want to file for dissolution. 

In the case of abandonment, some states require a minimum of one-year of abandonment before filing for the divorce. Tennessee, for example, requires that the desertion be for “one (1) whole year” and that the desertion be willful or malicious with no reasonable cause. [4]

The impact of claiming abandonment in a divorce proceeding

In many at-fault states, there may be an advantage to filing for divorce on the ground of abandonment. In some states, if Spouse 1 claims abandonment alleging that Spouse 2 moved out of the marital home, Spouse 1 (who has remained in the home and continued to pay the financial obligations related to the home) will be awarded the marital home upon dissolution. Also, if you can prove your spouse abandoned your child/children, it creates a “de facto” custody situation in some states whereby the spouse alleging abandonment  automatically has custody rights over the child/children. The spouse alleging abandonment here can therefore file for sole legal and physical custody of the child/children.

What are your rights if your spouse claims that you are the abandoning spouse in court?

If your spouse claims that you are the abandoning spouse, you should know that there are thresholds your spouse has to meet in order to properly prove abandonment in court. As a preliminary matter, your spouse would have to prove that you had no legal justification for the abandonment. For example, if your spouse was physically abusive and then accused you of abandonment when you left the home, your spouse would likely not be able to meet the threshold of abandonment in court.

Also, you can argue that the alleged abandonment was not for the required period of time. Your spouse will still need to prove the facts surrounding the abandonment and you can refute any evidence that is provided to the court, such as when the alleged abandonment began, as you have a right to contest the abandonment.

Do you need a divorce lawyer? What are your options?

The decision whether to file on grounds of abandonment is difficult in an already painful time. Consulting a lawyer that can help guide you through this process is often a good idea.

Hiring a lawyer is not your only path to getting legal guidance for your situation. Several lawyers and law firms have worked with Gavel to produce “legal apps” that can help you with this process:

[1] Merriam-Webster. (n.d.). Abandonment. In Merriam-Webster.com dictionary. Retrieved January 31, 2024, from https://www.merriam-webster.com/dictionary/abandonment; Merriam-Webster. (n.d.). Abandoning. In Merriam-Webster.com dictionary. Retrieved January 31, 2024, from https://www.merriam-webster.com/dictionary/abandon#h1.    

[2] Utah Code Sec. 30-3-1(3)(c).

[3] Jamison v. Jamison, 3 Va. App. 644 (1987).

[4] Tenn. Code Sec. 36-4-101(a)(4).

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