Abandonment and Desertion in Divorce

Learn what abandonment or desertion means in a marriage, how it can affect a divorce, and when it can lead to criminal charges.

By , Legal Editor
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Divorce is stressful and difficult for most people, but it's especially devastating if you feel like you've been abandoned without discussion or at least warning. Whether you're dealing with walkaway wife syndrome or a disappearing husband, you probably have a lot of questions—including how one spouse's desertion will affect the divorce proceedings and when abandonment is a crime.

What Is Abandonment in a Marriage?

Abandonment means different things, depending the context—whether it's a ground for divorce or a criminal charge. Also, as with most issues connected to divorce, the specifics will depend on the laws in your state, including how the courts interpret those laws.

Abandonment or Desertion as a Ground for Divorce

In order to get a divorce, you need a legally accepted reason (ground). In the past, you had to prove that your spouse was to blame for the end of your marriage through some kind of misconduct. Now, however, all U.S. states allow you to file for a no-fault divorce, typically based on a ground like "irreconcilable differences" or the "irretrievable breakdown of the marriage."

Still, about half of the states allow you the option of filing for a fault divorce based on abandonment or desertion. As a general rule in these states, you may get a divorce on this ground if your spouse has unilaterally left the family home without justification and refuses to come back. Abandonment isn't the same thing as a separation—when spouses decide to live apart as a trial, in anticipation of divorce, or instead of divorce.

In many states, the abandonment must have lasted for a minimum amount of time—usually a year, but as long as several years in a few states. Also, some state laws on divorce grounds add extra requirements. For instance:

  • Maryland requires that in addition to lasting at least 12 months, the desertion must be deliberate and final, with no reasonable hope of reconciliation. (Md. Code, Fam. Law § 7-103(a)(2) (2022).)
  • In Connecticut, the desertion must either involve a "total neglect of duty" for a year, or it must have lasted at least seven years with no communication from the absent spouse. (Conn. Gen. Stat. § 46b-40(c) (2022).)
  • In Pennsylvania, the one-year desertion must be both willful and malicious, without any reasonable cause. In contrast, Tennessee requires only that the year-long desertion or absence be willful or malicious, with no reasonable cause. (23 Penn. Cons. Stat. § 3301(a)(1); Tenn. Code §36-4-101 (2022).)

What Is Constructive Abandonment?

What if the spouse who walks out has a good reason for doing so? Courts recognize something called "constructive abandonment," which refers to behavior that essentially forces the other spouse to leave. For instance, some courts (and a few state laws) consider the following acts to be constructive abandonment:

  • unjustified and ongoing refusal to have sex, despite repeated requests
  • physical or mental abuse that forces the abused spouse to leave the family home or get a restraining order to keep the abuser away from the home
  • lock-outs—when a spouse stays in the family home but changes the locks without justification, barring the other spouse from entering, and
  • kick-outs—when one spouse forces the other to leave the family home without justification.

In these and similar situations, you may be able to get a divorce based on your spouse's constructive desertion or abandonment, even though you were the one who left. However, as in all fault-based divorces, you'll have to provide evidence to convince the judge that your spouse was guilty of abandonment under the law in your state.

What Is Criminal Abandonment?

Spouses who desert their families might also be charged with criminal nonsupport. Although this crime is sometimes referred to as abandonment or desertion, it's not just about leaving the family home. Instead, it's focused on the failure to provide needed support after leaving.

All parents have a legal duty to support their minor children with necessary food, clothing, shelter, and medical care. And all states have some form of a law making it a crime to shirk that duty intentionally. In some states, these laws may apply even if a court hasn't issued a child support order. Generally, however, parents won't be guilty of criminal nonsupport if they don't have the financial ability to support their kids.

Criminal nonsupport of children is usually a misdemeanor, at least for a first offense. But it's a felony in some states, and several other states make it a felony under certain conditions (such as for repeat offenses, when the parent left the state, or when the failure to support lasted for a certain period of time).

In many states, it's also a crime to abandon a dependent spouse without providing needed support. Here again, the laws don't necessarily require that there already be an alimony or spousal support order in place before the deserting spouse may be charged with this crime. For instance, criminal nonsupport in Massachusetts includes abandoning a spouse or minor child without making reasonable provisions for their support, as well as intentionally failing to obey a court order for alimony or child support, despite having the ability to pay. (Mass. Gen. Laws ch. 273, § 15A (2022).)

Note that parents may also be charged with a federal crime for failing to pay child support, but the law applies only if:

  • a court has ordered that parent to pay support
  • the child lives in a different state than the parent, and
  • the unpaid support is at least a year overdue or totals more than $5,000.

(18 U.S.C. § 228 (2022).)

Can Abandonment Affect Child Custody Decisions in Divorce?

In all states, judges must focus on the children's best interests when they're making decisions about legal and physical child custody—where children will live most of the time after their parents divorce, how much parenting time (or visitation) the other parent will get, and how parents will divide or share decision-making for their children. State child custody laws usually spell out specific factors that judges must consider when they're deciding what parenting arrangements would be best for the kids.

Custody decisions are generally not meant to punish parents for bad behavior. But if you've abandoned your family for a length of time without justification—and particularly without communication or support—that's likely affect a judge's conclusions about your parental fitness, sense of responsibility for your children, and willingness to look out for their welfare.

This doesn't necessarily mean that a spouse who unilaterally moves out of the family home can't get at least some parenting time in a subsequent divorce. Judges look at all of the circumstances before deciding on a parenting plan that will be best for the kids, and they usually favor arrangements that will allow the children to have a continuing relationship with both parents—as long as that wouldn't be harmful to the kids

Can Abandonment Affect Alimony or Property Division in Divorce?

As with laws on child custody, most states require judges to consider a number of factors when they're deciding whether to award alimony in a divorce and, if so, how much the payments will be and how long they'll last. In a few states, the list includes a spouse's fault or misconduct, which would include abandonment or desertion. But even when judges may consider misconduct, it will only be one factor among many going into these decisions. The judge's main focus will be on the financial aspects of alimony: how much one spouse needs support, and whether the other spouse can afford to pay it. Abandonment is most likely to be a factor when it has hurt the remaining spouse's finances.

When it comes to property division in divorce, most states use what's known as the "equitable division" rule, meaning that the judge will decide on a fair way of distributing a couple's assets and debts. Although the law might spell out certain factors that judges must take into consideration, they generally have a lot of leeway when they're deciding what would be fair under the circumstances. Even some of the "community property" states allow or require judges to divide a couple's property fairly but not necessarily equally.

So unless a state's law specifically prohibits consideration of misconduct as part of the property division, a spouse's desertion might factor into a judge's decision to award the left-behind spouse a greater share of the couple's marital property, as a way to achieve overall fairness. That said, just because you move out of the family home before or during a divorce doesn't mean you'll lose your property rights.

How to Get a Divorce Based on Abandonment

If you're thinking about filing for divorce based on your spouse's desertion, you should speak with an experienced family lawyer who can explain how the law in your state applies to your situation, whether it would be possible and advantageous to pursue a fault-based divorce, and what kind of evidence you would need to prove that you met the legal requirements for abandonment.

Be forewarned: It's almost always cheaper and quicker to get an uncontested divorce—and to do that, you and your spouse would need to agree on a no-fault divorce, as well as reach a divorce settlement agreement that covers all the issues in your divorce.

But what if you don't even know where your spouse is? It's possible to get a divorce without your spouse. But there are pros and cons to a default divorce. And if you can't locate your spouse even to serve the divorce papers, you'll need to follow strict requirements for alternative service (such as by publishing a notice of the divorce in a local newspaper). So here again, you'll almost certainly need the help of a divorce lawyer to guide you through the process.

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