Understandably, navigating a divorce or separation is challenging on numerous levels. Matters often become more complicated and sensitive when abandonment occurs. Here’s what you need to know about abandonment in a divorce.
Abandonment, also known as desertion, has different legal definitions across states. Generally speaking, abandonment refers to a spouse leaving a relationship and the family home without prior communication or warning. Abandonment does not equate to separation in a marriage. However, it is often preliminary to divorce proceedings.
What constitutes abandonment in divorce?
Abandonment refers to one spouse leaving the other without communication. Most states require that the parties failed to agree about such a departure in order for it to be considered abandonment. Oftentimes, abandonment occurs when couples are unable to get a divorce through other means.
There is a unique distinction for a spouse who left the household due to extremely challenging circumstances within the marital home. Known as constructive desertion, one partner essentially forces the other partner to leave the household through unbearable misconduct. This can include physical or mental cruelty and substance/alcohol abuse. In the case of constructive abandonment, the court is less likely to find the leaving spouse guilty of abandonment in a divorce.
How long does a spouse need to be gone for it to be considered abandonment?
The length of abandonment differs across states. However, it is often determined by a year or more of abandonment. Reconciliations reset this time frame. If the party who left returns to their spouse and leaves once more, the point of abandonment will be considered the latest incident of leaving.
How does abandonment relate to divorce?
All states provide couples with the option to file for a “no-fault” divorce. This means that the spouse or domestic partner who is seeking a divorce does not have to prove that the other spouse or domestic partner did anything wrong. Instead, one spouse or domestic partner must state that the couple can no longer get along, to the point of inability to keep the marriage alive. However, some states provide the option of a “fault” divorce. In a fault divorce, a spouse alleges that the other is responsible for the breakdown of the marriage. Fault divorces are often considered to be more time-consuming and expensive compared to a no-fault divorce. However, some may find this a more just option if their relationship dealt them significant suffering or pain.
Related: How Domestic Violence Affects Divorce in California
Abandonment in California Divorce
According to Family Code Sections 2310 to 2313, California actually does not recognize abandonment when considering grounds for divorce. The primary consideration for divorce is “irreconcilable differences or incurable insanity.” Therefore, it is not necessary for a spouse to prove that their partner abandoned them and their children (if applicable). However, one can be guilty of criminal abandonment for leaving a spouse who has a serious illness or disability. Furthermore, there is a law surrounding child abandonment law in California. Under California Penal Code Section 237a, it is illegal to willfully abandon a child with the knowledge that it will likely endanger the child.
FAQs About Abandonment in Divorce
How is abandonment different from separation?
Unlike abandonment, separation involves a mutual decision between the spouses regarding the termination of the relationship. If not at least that, a separation involves the communication of leaving a spouse. Abandonment does not involve that same level of communication or consent.
Related: How to File for Legal Separation in California
How can you file for divorce using abandonment?
To file for divorce using abandonment, you begin the process by filing a petition for divorce with your local court. States have different residency requirements, thus, it is important to take note of such possible issues beforehand. You will need to state and prove the specific facts relating to the abandonment of the relationship. Speak with an experienced attorney when considering filing an abandonment divorce.
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If you or a loved one has experienced abandonment in divorce, get your free consultation with one of our California Divorce Attorneys today!