Abandonment, or desertion, can be incorporated into a divorce proceeding. All states now offer a type of divorce known as No Fault divorce. (New York was the last state to pass No Fault divorce laws in the middle of 2010).
Most states still offer the option for divorce to be filed based on fault grounds, meaning that one of the parties is to blame for the divorce. If a party is at fault, the judge may properly take that into account when determining the separation of assets, child custody and other issues to be resolved.
Abandonment is a type of divorce ground which places the fault of the divorce on one of the partners. Abandonment is typically applicable when a spouse has left and never returned.
In nearly every state where fault-based divorce is available, abandonment is typically one of the fault grounds for divorce.
The exact definition of abandonment or desertion varies from each state that allows for it. But generally, abandonment occurs when one spouse stops living with the other, with the intention of never returning to the family residence.
Abandonment generally requires no "good reason" for leaving and a certain time limit of separation.
Surprisingly, abandonment may be found even if the spouse doesn't actually leave, depending on your state's divorce laws. Failure to provide financial support for a spouse can be considered abandonment in certain jurisdictions.
In order to prove abandonment, the first hurdle you would have to get over is determine if you live in a state that allows for abandonment. Once you have determined if abandonment is an option, you will likely have to prove that your spouse has left your house for the requisite amount of time.
However, just showing that your spouse was out of the house for the required period of time will usually not satisfy all the elements of abandonment. You'll usually need to show the circumstances surrounding your spouse’s departure.
If you spouse had a reason leave, then typically you won't have this as an option for an at-fault divorce. Some states will even require proof from the spouse seeking a divorce to show that he or she has made an attempt to save the marriage.
It may be difficult to navigate the divorce laws and requirements in your state on your own. If you need help deciphering the divorce laws where you live, connect with a local family law attorney today. Simply fill out our case review form below to get started.