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Spousal abandonment can happen in two main scenarios.
Maybe you came home to a note your spouse left saying, “I’m leaving.”
Or maybe your spouse has been abusive and cruel, forcing you to move out.
Either scenario is considered spousal abandonment.
But both scenarios of spousal abandonment has consequences.
A spouse can get reduced, or completely lose, custody and spousal support for spousal abandonment.
In this article, you’ll learn everything about spousal abandonment, including:
Divorces can be devastating. It’s heartbreaking when parents lose custody of their children. Spouses end up having to pay agonizing amounts of financial support.
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The spousal abandonment definition is the willful abandonment of one spouse by another, without the abandoned spouse’s consent, for a specific period of time.
Now we have the spousal abandonment definition, but what is spousal abandonment?
Spousal abandonment is also known as desertion.
It refers to the willful abandonment of a spouse with the intention of ending the marriage.
To be granted a divorce based on spousal abandonment, the desertion must last for 12+ months.
Desertion, or spousal abandonment, means that your spouse left the marital home.
It means that they left without communication or warning.
And they have been gone, without coming back, for more than a year.
Criminal abandonment is when a parent abandons a child that is less than 10 years old.
There must be evidence that the parents left the child unattended without the intention to return.
Constructive abandonment is when your spouse makes life unbearable so you have to leave the marital home.
Some reasons someone would do constructive abandonment would be:
Proving constructive abandonment is difficult.
If you’re planning on leaving the marital home, you should consult an attorney.
They will tell you what steps to take to prove constructive abandonment.
Otherwise, you’re defending yourself against your spouse claiming spousal abandonment.
This can result in you losing custody or having to pay more in financial support.
Related: Reasons a Judge Will Change Custody
To use abandonment as your grounds for divorce, you have to meet some criteria.
The grounds for abandonment in marriage are:
Related: Moving Out of State With Child No Custody Agreement
When you file for a spousal abandonment divorce, you need to specify grounds for divorce.
For a spousal abandonment divorce, the grounds will be abandonment.
You’ll need to include details about the desertion.
And you need to make sure you meet the 1-year time frame for a spousal abandonment divorce.
When you are filing abandonment divorce, you need to make spousal abandonment your legal reasons for divorce.
You’ll need to include proof when filing an abandonment divorce.
This means proving they voluntarily left without being provoked to do so.
And proving that they left without coming back 12+ months ago.
Work with your divorce attorney to provide the proper evidence when filing for an abandonment divorce.
If you file for divorce with abandonment as the grounds, but cannot prove spousal abandonment, the judge will deny your divorce.
And you will have to re-file your petition for divorce.
Related: What Are The Chances Of A Father Getting Full Custody
With spousal abandonment, one spouse leaves the marital home without:
With a legal separation, there is:
In a legal separation, spouses determine:
With spousal abandonment, none of this gets figured out.
The spouse literally abandons the family.
If you have a spousal abandonment or desertion case, you have to prove spousal abandonment.
Specifically, you’ll have to prove that your spouse left you for 12+ months with the intent to desert you.
For example, let’s say that you are filing an abandonment divorce, but your spouse left due to domestic violence 6 months ago.
In this case, the judge will dismiss your case since the spouse must have left 12 months before you can file for divorce.
When proving spousal abandonment in divorce, you have to prove that:
The courts need evidence that the desertion was voluntary and they were not provoked to leave.
It’s not required that you prove the emotional state of the abandoning spouse.
It’s only required that you prove they left 12 months ago with the intent to divorce.
Related: I Want To Leave My Husband
Are there any abandoned spouse rights?
The abandoned spouse has the “right of occupancy.”
The abandoned spouse can sell abandoned personal and real property.
This means that the abandoned spouse can sell the house.
Before you do sell an abandoned marital home, you need to consult with a family lawyer.
They will make sure that you are not breaking any laws.
Incorrectly selling the house allows the abandoning spouse to seek damages.
Basically, meaning they can sue you.
Related: Questions to Ask A Divorce Lawyer
We get asked a lot, “When my husband moves away, what are my rights?”
It’s important to work around the spousal abandonment laws.
Usually, it’s not considered spousal abandonment until a year has passed.
If you sell the house, sell property, or ‘move on’ before that year is up, then it can backfire.
Assuming your spouse left over a year ago, your rights when a spouse moves away are:
If your spouse has moved away less than a year ago, you can file for a divorce.
You would make the grounds for divorce irreconcilable differences.
This is because you cannot use spousal abandonment as grounds until a year has passed.
If a year has not passed since they left then you cannot sell or dispose of any property.
This includes personal property and real estate.
If my husband walked out on me what are my rights?
Your only right when your husband walks out on you is to file for a no-fault divorce.
You cannot sell the house or throw away or sell their possessions.
It’s important to note that your spouse could drain your joint bank accounts when they leave.
But note that a person cannot remove their spouse from a health insurance plan before the divorce.
This is because there is no “change in circumstance” and it’s not at the end of the calendar year.
Unless you have a Power of Attorney, the marital home cannot be sold.
That is, until after they meet the spousal abandonment requirements.
There are plenty of misconceptions about spousal abandonment.
You may be filing for divorce with abandonment as the grounds for divorce.
But if the abandonment is not legitimate, the judge will reject your divorce.
And you will have to re-file for your divorce.
Legal separation is not the same as marriage abandonment.
With legal separations, the spouse leaving agrees to:
They still continue to honor the family and financial obligations.
It’s also not marital abandonment when a spouse leaves but comes back a few weeks or months later.
Spousal abandonment is desertion for no reason that lasts at least a year.
Related: If There Is No Custody Order In Place Can I Take My Child?
Both parents have a legal obligation to support their children.
When a parent abandons the marital home, they are also abandoning the children.
The abandoned spouse can file a petition for full custody of the child.
The parent must be able to prove that the child was abandoned, abused, or neglected.
If they can do so, this is grounds for full custody of the child.
The courts can terminate the parental rights of the abandoning spouse.
But this also terminates their responsibility for child support.
Sometimes spouses leave a marital home because they are being abused.
This is not considered abandonment.
If the abusing partner files for divorce due to abandonment, the judge will reject the case.
In fact, if you prove you left due to abuse, the divorce may swing in your favor instead.
Sometimes a spouse needs to relocate for job opportunities.
But their spouses do not want to move with them.
This can be because of:
Whatever the reason may be, it is not spousal abandonment when a spouse refuses to relocate.
Related: The Average Cost of Divorce
When a spouse abandons a marital home, they still keep the right to access the home.
Meaning, they can come back at any time.
But they lose decision-making rights to the property.
This means that the spouse who was abandoned can sell the property.
Sometimes the abandoned spouse ends up paying all the bills, mortgage, taxes, and insurance.
In this case, the judge may give the abandoned spouse full equity of the home during the divorce process.
Meaning that the abandoning spouse loses the equity they had when assets get divided.
Related: Getting a Divorce While Pregnant
When a spouse abandons the marital home, they are usually abandoning the children too.
Children rely on their parents for care, protection, and support.
Parents have a legal and financial responsibility to care for and provide for their children.
This is true even if you leave your spouse.
Let’s say your spouse abandoned you and your children without financial support.
The court may favor you for sole or full custody of the children.
After you have been abandoned for a year, file a petition for primary physical and legal custody.
It’s important to note that abandonment does not mean it’s going to be easy to end parental rights.
The judges still believe that biological parents should have rights to their children.
But the odds are against the parent who abandons their family.
The judge will need to address legal issues.
Legal issues include decisions about medical care, schooling, and other life issues.
Related: Who Has Custody of a Child When the Parents Are Not Married?
When you file the petition for custody, file for child support too.
Sometimes you may not be able to find the other parent.
In this event, you will most likely get awarded child support.
But actually getting those payments will be tougher.
Let’s say you get awarded child custody, but the other parent cannot be found.
In this event, they will owe back child support.
Their back child support will be tied to their social security number.
If they don’t make up the payments, the IRS can give you their tax returns.
Related: Getting Emergency Custody
This one varies from state to state.
And it depends on what the judge’s final decision is.
But for community property states, the property gets split 50/50 no matter what.
For equitable division states, the property gets split based on a fair percentage.
When one spouse abandons the marital home, it doesn’t mean they lose their equity in the home.
During the abandonment period, let’s say you have been:
In this case, the judge will most likely give you a larger percentage of equity.
This is because it’s fair and equitable since you have been managing the property.
You will need to be able to document and prove the three situations mentioned above to the judge.
Related: Dissolution vs Divorce
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