Marital abandonment occurs when a spouse intentionally leaves their spouse without reason. Here’s how to handle marital abandonment.
In order for desertion to legally occur, a spouse must cut all connections to the household for a year or longer, relinquishing all responsibilities (including financial and emotional) to the family or household without reason. Depending on whether or not a state is a “fault” or “no-fault” state, marital abandonment may be grounds for divorce. In a no-fault state, marital abandonment would be irrelevant to divorce proceedings. Spousal desertion may hold greater importance in court if children are involved in the marriage.
Marital Abandonment In Fault States Versus No-Fault States
Marital abandonment is irrelevant in no-fault states. The only grounds for divorce in no-fault states are irreconcilable differences and insanity. Only in specific circumstances in regards to child custody or alimony would marital abandonment be considered.
Marital abandonment, sometimes called “willful desertion,” can be grounds for divorce in a fault state. The court would need proof of abandonment in the marriage to grant a divorce. Desertion would be accounted for when determining child custody and property.
Related: California No-Fault Divorce: What You Need to Know
Types of Marital Abandonment
There are two types of abandonment: criminal abandonment and constructive abandonment.
Criminal abandonment occurs when a spouse leaves and does not provide support for a care-dependent spouse or a child. For example, criminal abandonment would occur if a spouse having a disease or a disability is deserted by their “caretaker” spouse. In most abandonment cases, the deserting spouse must provide financial support for the child.
Constructive abandonment entails the spouse had no option but to leave due to unbearable household conditions, including:
- abuse,
- adultery,
- addiction,
- misconduct,
- refusal to have sexual relations,
Not sharing the same bed can be grounds for divorce in fault-based divorce states.
How Marital Abandonment Affects Children and Child Custody
Custody courts always seek to uphold the child’s best interest. Spousal abandonment does not equate to child abandonment. However, a parent who deserted their family may struggle to gain custody; the abandoned spouse usually has an easier time petitioning for custody. Exceptions to marital abandonment affecting child custody may include abandoning a marriage due to abuse. A parent may be deemed fit to parent after abandoning their spouse and thus may not lose parental rights. Financial responsibilities to the child remain even if the spouse does not gain child custody.
What happens to assets in a marital abandonment divorce?
When a spouse leaves their home, the spouse does not automatically give up rights to the home. The assets (house, finances, property) will remain jointly controlled by both spouses. The “deserting” spouse may still hold partial ownership of the house. If a spouse does not pay taxes or keep up with bills due to abandonment, the abandoned spouse may seek more or full ownership, or ask for equity rights. Spouses are guaranteed privacy rights during divorce proceedings, meaning the abandoned spouse is entitled to privacy in the home.
Related: Abandonment in Divorce: What You Need to Know
How Abandonment Can Affect Alimony
If the abandoned spouse is also the lower-income spouse, the spouse can ask for temporary spousal maintenance to maintain their marital standard of living.
Related: Abandonment and Alimony: CA Family Code Section 4410
What if the spouse cannot be found?
A spouse filing for divorce (the “petitioner”), must serve divorce papers to their spouse (the “respondent”). A notice in a local newspaper or courthouse may be released by the court to locate a missing spouse. The public notice would include intent to divorce, and would, therefore “serve” the spouse. The abandoned spouse must prove that everything in their power has been done to locate their spouse. The divorce would proceed after thirty days and the divorce would be finalized by default.
Contact Us
If you or a loved one would like to know more about marital abandonment, get your free consultation with one of our divorce attorneys today!