In general, abandonment occurs when one spouse decides to move out of the family home without warning. Usually, the non-abandoning spouse will then have to prove that their spouse abandoned them.
The court considers many other factors to determine whether the abandoning spouse’s actions constitute abandonment. However, the primary factor they look at is how long the spouse has been gone from the home. Most states require a period of at least a year.
As is found to be the case with many issues in family law, the laws for abandonment and desertion can vary from state to state. For example, California is solely a no-fault state, which means the only grounds available for filing a divorce are no-fault reasons.
Illinois, on the other hand, has both fault-based and no-fault elements available when filing for a divorce. Therefore, filing for divorce based on the grounds of abandonment will produce different results in each of the respective states.
Some states make a distinction between the terms “abandonment” and “desertion.” For instance, in some jurisdictions, the abandoning spouse must also possess the intention to never return to the family home for it to be considered desertion. With an abandonment claim, however, this requirement may not exist.
Additionally, some states require different time frames for whether abandonment or desertion can be asserted. In other states, the law may require that there is no evidence the spouses were ever separated prior to the abandonment incident.
Again, the differences between the terms depend on the state where the divorce is being filed.
Regardless, of how state laws define the differences between the terms, abandonment and desertion, both typically involve the same elements of proof. These may include:
- One spouse has physically left the other, and is no longer living with the other spouse in their shared home;
- The abandoning spouse has not only moved, but also has failed to support the non-abandoning spouse financially; and
- The abandoning spouse refuses to engage in sexual intercourse without having justifiable reasons. (Though this type is referred to as “constructive” abandonment or desertion. It means the spouse has abandoned the spirit of marriage, not that they physically left).
As aforementioned, the most important factor when proving abandonment or desertion is the time period. Essentially, the couple needs to be physically separated for at least a year in most states before a divorce based on abandonment or desertion can be filed.
The time frame begins from the moment the abandoning spouse vacates the premises. If they move back in, however, this action could reset the clock in some states.
Depending on the jurisdiction, there are states that permit no-fault divorce, fault-based divorce, and some that allow both. Abandonment is normally considered grounds for a fault-based divorce.
If the state falls under the rules of a no-fault divorce jurisdiction, it means that the couple can file for a divorce even if neither party is at fault. In such states, a couple might have a choice between filing for divorce under the no-fault category, or under the abandonment and desertion category.
Aside from the names of the categories, other differences may include:
- Filing for a no-fault divorce is sometimes quicker than filing for a divorce based on abandonment or desertion. (Again, no-fault divorce is not available under certain circumstances, or in some states);
- The level of proof required is generally higher for abandonment and desertion claims, than it is for a no-fault divorce; and
- Although this fluctuates on a case-by-case basis, the overall cost of the legal proceedings for both may result in varied amounts.
Regardless of whether the situation calls for a no-fault divorce or a divorce filed on the grounds of abandonment, both often involve complex processes. Hiring an experienced divorce lawyer can make these types of procedures much easier to manage because they already know the best way to approach them.
Filing for divorce can be a challenging life event, both legally and emotionally. When it comes to abandonment and desertion laws, hiring a divorce lawyer will not only help the process run smoother, but can also benefit you in protecting your own interests.
A divorce lawyer can provide you with valuable legal advice, guide you through filing requirements. They can also help determine whether there are better options available for how to split your assets. Most importantly, a lawyer can help make what may be an upsetting situation less draining.