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Abandonment and Desertion Laws

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What Are Abandonment and Desertion Laws?

Abandonment and desertion laws form a part of some divorce and separation proceedings in family law. In some states, abandonment and desertion is a fault-based grounds for divorce. It is usually defined as the situation where one spouse has decided not to live with the other spouse for no justifiable reason. 

State abandonment and desertion laws may vary. For example, the grounds for divorce in California may be very different from those in Illinois. However, the non-abandoning spouse usually has the burden of proof to show that the other spouse has abandoned them.   

Is There a Difference Between Abandonment and Desertion?

Some states make a distinction between the terms “abandonment” and “desertion”. For example, in some jurisdictions, the abandoning spouse also needs to intend not to return in order for it to be considered desertion. However, with an abandonment claim, there might not be such a requirement. 

Also, there may be differences regarding the time period in which the spouses must have been separated before abandonment or desertion is found. 

What Is Needed to Prove Abandonment and Desertion?

Regardless of how state laws define abandonment versus desertion, they generally involve the same basic requirements of proof. These can include:

  • One spouse has physically left the other, and is no longer residing with the other spouse
  • The spouse that has moved has also failed to support the other financially
  • The moving spouse has refused to engage in sexual intercourse without justifiable reason

Also, as mentioned there may be a time requirement involved when proving abandonment and desertion. In other words, the couple usually needs to be physically separated for a certain time before they can file for divorce based on abandonment/desertion.  Usually, the “clock” starts ticking when they move out; if they move back in it may “reset” the clock.

Is There a Difference Between Divorce Based on Abandonment Versus No-Fault Divorce?

Some states allow for no-fault divorce, wherein the couple can file for divorce even if neither party is at fault. In such states, the couple or a partner may have the choice between filing for divorce under the no-fault category or the abandonment and desertion category. 

Some differences between the two may include:

  • Filing for no-fault divorce can sometimes be quicker than filing for divorce based on abandonment. However, no-fault divorce is not available in all situations
  • The level of proof is generally higher for abandonment/desertion claims than in no-fault divorce
  • May yield differences in the overall cost of the legal proceedings

For both no-fault and abandonment divorces, the services of a lawyer are generally necessary, since they can often be complicated.

Do I Need a Lawyer for Help With Abandonment and Desertion Laws?

Filing for divorce can sometimes be a complex and challenging process.  In general, it’s to your benefit to hire a divorce lawyer when filing under abandonment and desertion laws. Your attorney can provide you with valuable legal advice and can guide you during the divorce process. Also, your lawyer can help determine whether you have any alternative filing options.

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 04-03-2014 01:59 PM PDT

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