Abandonment means that one spouse has left the other without consent, but like adultery, proving desertion means more than that a person left home without the consent of the other spouse. Most states require that the defendant or respondent left home for a year or more; that the parties failed to agree about the departure; that the plaintiff or petitioner failed to pay support; and that the departure was not caused by the plaintiff or petitioner. Here’s our guide to marital abandonment.

Marital Abandonment

It might be a cliché or something that you may see in a movie or a television show, but coming home to an empty house with a note saying that your partner is leaving, can happen in real life. Desertion really does happen. Many find themselves alone in the marital home after a spouse leaves, forced to pick up the pieces. Between the physical, emotional, legal and financial consequences of marital abandonment, the difficulties are innumerable.

Willful Desertion

Moving out of the family home in order to create a temporary or permanent separation is not considered marital abandonment. The difference can be interpreted in the refusal of support, financial or otherwise. If a spouse is unreachable or refusing to provide any level of support, an argument for marital abandonment can be made.
The argument is based around the notion of willful desertion. Because of this notion, the abandoned spouse has no financial responsibilities to the abandoning spouse, in most states. Many states also require the abandoned spouse that they have been a victim of marital abandonment, in order to secure a divorce.

Constructive Desertion

If someone leaves a marriage because the other spouse has made it impossible for the person to stay, the person leaving the marriage can claim constructive desertion. This means that the other spouse made it intolerable to stay in the marriage. Constructive desertion happens when one partner causes the other partner to leave the marital home through misconduct. If one partner is forced to leave the home because of the other’s misconduct, he or she has been constructively deserted. In this regime, the conduct of one spouse makes it impossible for the other to stay in the marriage.
Physical or mental cruelty to the spouse can constitute constructive desertion. Moreover, refusing sexual intercourse can often be held to be constructive desertion. In some cases, requiring a spouse to live with intrusive or abusive in-laws was held to be constructive desertion, as was refusing to relocate to a new town or state.
In the case of sexual relations, constructive abandonment means a spouse leaves the marriage in spirit by refusal to have sexual relations. In sexual desertion, which is considered a fault ground, the party charging it must prove abandonment. This is generally for one year, during which the spouses may share the same roof (but presumably not the same bed).

What To Do If Your Spouse Abandons You

If you have children, it is important – from a legal perspective – to file a motion for primary physical custody and child support when you file for divorce. For children, the typical period of time that has to pass before a child is considered abandoned depends on the state and court. If you choose to terminate the abandoner’s parental rights in the future, this can be a helpful tip.

Hire a Brooklyn Divorce Attorney

If you are seeking a divorce in the state of New York and need an experienced legal team call 718-875-7584 to talk to Brian D. Perskin & Associates P.C. today!

Scroll to Top