We have all seen the movie showing a husband or wife coming home from a busy day at work to an empty house and a note from a spouse saying it's over. Although it sounds like a fictional story, it happens, and it can change your divorce in very drastic ways.
Every state has its own definition of abandonment or desertion, but generally, it means that one spouse leaves the family home and the relationship without communicating and without warning. You'll need to check local laws to determine the exact term and definition that applies to divorce in your state.
For example, in Alabama, if a spouse leaves home without the intent of returning, the court views that as abandonment, which can lead to the other spouse filing for a "fault" divorce after one year of the spouse's absence. (Ala. Code § 30-2-1 (a)(3).)
It's important to understand that if you have children who are financially dependent on you, and you abandon them without support, some states can charge you with a criminal abandonment, in addition to allowing your spouse to use it as grounds for a fault divorce. (Wash. Rev. Code Ann. § 26.20.030 (1)(3).)
If you left the family because your spouse made it challenging to remain in the marital home, you might be guilty of constructive abandonment. For example, if a wife moved out of the marital home with the minor children, without informing her husband, because her husband was an alcoholic and abusive to the family, the court is less likely to find the leaving spouse guilty of abandonment in a divorce.
In every state, divorcing couples have the option to file a "no-fault" divorce, which means that the neither spouse blames the other for the breakup, and marital misconduct doesn't play a factor in the divorce. In many states, no-fault divorce is the only option if you want to terminate your marriage legally.
Although each state defines a no-fault divorce in its own way, typically, the filing spouse must only demonstrate that there is a breakdown of the relationship without the possibility of reconciliation or that the couple voluntarily separated.
However, in some states, you can ask the court for a "fault" divorce, which is where one spouse alleges that the other's marital misconduct caused the breakdown of the relationship. Some spouses may desire a fault divorce to "punish" the spouse who committed misconduct, but fault divorces are generally more expensive, emotional, and time-consuming than a no-fault divorce. States like Alabama and Maryland allow spouses the option of filing a fault divorce using abandonment as a ground for their request.
In some states, filing a no-fault divorce may require that you and your spouse live separate and apart for a specific period of time. It's understandable that waiting any length of time is frustrating and, in some cases, impossible.
If your state also permits fault divorce filings using abandonment or desertion, the restrictions on time apart may not apply to your case. For example, in Arkansas, filing for a no-fault divorce requires the spouses to demonstrate that they have voluntarily lived separate and apart for at least 18 months before the court can issue a divorce. However, the court removes the 18-month requirement when you file for a fault divorce if you can demonstrate that your spouse willfully abandoned the marriage and failed to support the other. (Ark. Code Ann. § 9-12-301 (b)(7).)
Whether you call it marital abandonment or desertion, both are a result of one spouse leaving the marriage without communicating with the other and without the intent of coming back. Separation, on the other hand, is a mutual decision between the spouses, or at the very least, one that a leaving spouse communicates to the other.
In most separations, couples will communicate how long the separation will last, whether the separation will lead to a divorce, and how to handle important matters, like finances and childcare, during their time apart.
Abandonment or desertion are fault grounds for divorce, so if you live in a pure no-fault state, you can't use your spouse's desertion as a reason for the divorce. For example, Michigan is solely a no-fault state, which means the only grounds available for divorce are no-fault, specifically, a "breakdown of the marriage relationship to the extent that the objects of matrimony are destroyed." (Mich. Comp. Laws § 552.6) Some states do permit filing spouses to use a voluntary separation as a reason for a no-fault divorce.
Filing a divorce using abandonment as the ground for your request, you'll first need to file a petition for divorce with your local court. It's important to review your state's residency requirements, which often require you or your spouse to live in the state for a specific period of time before you file. If you file and don't meet all the requirements, the judge may deny your divorce, and you would need to resubmit your request.
When you file for divorce, you'll need to allege your reasons or "grounds." If your spouse abandoned or deserted you, you will need to state the specific facts surrounding the abandonment, including how long ago your spouse left. Some states require a period of time to pass after abandonment before you can file. If you have questions about your state's specific laws, speak with an experienced attorney in your area before you file.
In most abandonment and desertion cases, you will need to prove that your spouse abandoned you for a specific period of time. Additionally, be prepared to demonstrate to the court that your spouse refused to communicate, there was no justification for leaving, and that your spouse intended to end the marriage and not come back.
For example, if you file a desertion divorce in Georgia, and your spouse left due to domestic violence only six months ago, the judge will dismiss your case. You must prove that your spouse left at least 12 months before filing and, when doing so, did it willfully with intent to desert you. (Ga. Code Ann. § 19-5-3 (7).)
Most divorcing couples have the opportunity to discuss child custody arrangements (legal and physical custody) during the divorce process. However, if you're going through a divorce where your spouse abandoned you and your children, negotiations are often impossible.
If your spouse left you and the children without support, the court might favor you for sole or full custody in the divorce. However, in every divorce case involving minor children, the judge will evaluate the children's best interest, including whether either parent abandoned or deserted the children when deciding how to handle custody and parenting time.
It's a common misconception that if you leave your marital home before filing for a divorce, you automatically give up your rights to the marital estate. Instead, the court will evaluate each divorce on a case-by-case basis before splitting marital property or deciding alimony.
For example, during property division evaluations in Michigan, judges evaluate a specific set of factors, which includes the past relations and conduct of the parties and general principles of equity. Simply put, if you leave your spouse and stop all financial support, the court may award your spouse more of the marital estate to make-up for your failure to contribute. (Sparks v. Sparks, 440 Mich 141, 485 NW2d 893.)
For spousal support, judges in Michigan may consider either spouse's marital misconduct (for example, wasting marital assets on gambling or an affair), and general principles of equity, but the ultimate alimony award, if any, must be fair and equitable. (Mich. Comp. Laws § 552.23.)
If you would like more information on property division, alimony, and abandonment in your state, contact an experienced family law attorney.