What is “Abandonment”?

April 27, 2016

[Ed: Originally published on Facebook.]

What is “abandonment”?

Some people are afraid to leave the marital home because they don’t want to be accused of having “abandoned the marriage”. It is true that in many jurisdictions, proving that one spouse “abandons” the marriage or “deserts” the other spouse prevents the abandoning spouse from claiming alimony.

However, abandonment is much more serious than that. In the first place, in most jurisdictions the abandonment has to have been for at least a year. There also has to be an intention not to return to the marriage. That means if there is a good-faith reconciliation, and then the spouse leaves again, the clock starts all over again.

Moreover, if there is some agreement that the parties are separating, especially if it’s on a “trial” basis, that’s not abandonment. If one spouse was forced to leave the marital home – either literally or constructively (because the other spouse has made it intolerable to stay) – that’s not abandonment, either. (In fact, in that case, the argument could be made that the other spouse actually “constructively abandoned” the marriage.)

Separating from your spouse as a prelude to divorce is often good planning, especially if it would make things worse on the spouses and/or the children to stay.