Marital Abandonment and Divorce: The Definitive Guide

Marital Abandonment

Although it doesn’t always get the same level of attention as other reasons why people get divorced, the problems that abandonment can cause are very real. The emotional and financial toll can be devastating.

Here’s a closer look at spousal abandonment and how it can affect you.

What is Considered Abandonment in a Marriage?

Considered Abandonment in a Marriage

Marital abandonment occurs when one spouse deliberately severs all ties with his or her family with no intention of returning. This includes no longer taking care of financial obligations and support without a good reason.

Abandonment does not take place when a spouse moves out of a family home to create a temporary or permanent separation unless it also includes the refusal to provide any type of support. In some fault-based divorce states, this is known as “willful desertion” and can be cited as a specific ground for divorce.

There are two types of abandonment:

1. Criminal Abandonment

Criminal abandonment takes place when one person stops providing for the care, support, and protection of a spouse who has health problems or minor children without “just cause.”

For example, if your spouse has a terminal disease, and you no longer feel that you can be their caretaker, the court will not recognize your desire to leave a spouse who is dependent on you as grounds for divorce. However, if you leave, you can still be granted a divorce in a no-fault state because the burden of proof as to why you want to get divorced is much lower.

Although you may be granted a divorce, as part of the settlement, the court may rule that the sick spouse is financially dependent on you and you will be required to provide financial assistance through alimony. In all cases, a parent is financially obligated to provide for their minor children whether they are sick or not.

Refusing to pay alimony, or child support when a parent is obligated to do so could result in a variety of legal penalties, including wage garnishment, fines, and possibly jail time.

2. Constructive Abandonment

If a spouse leaves a marriage because the other spouse has made conditions intolerable to stay, the person leaving the marriage can claim constructive abandonment.

Suppose your spouse is abusive to you, has committed adultery, or has a chronic substance addiction problem. If you left you could claim constructive abandonment because you were forced to leave your home due to the other spouses’ misconduct.

Leaving because of physical or mental cruelty can be a justifiable reason for constructive abandonment. In some states, refusing sexual intercourse can often be claimed as constructive desertion as well. There are also instances when a spouse is required to live with abusive or intrusive inlaws or they refuse to relocate to a new state or city as forms of constructive abandonment.

In fault-based states, failure to have sexual relations is often considered a fault ground. Spouses may still live under the same roof, but if they don’t share the same bed, a claim of abandonment can be used as a reason for divorce.

While filing for divorce and using abandonment as the fault-based ground for your action, as the plaintiff, you will be required to provide proof that the abandonment took place. This requires more effort than in a no-fault divorce, but in some states, you can use a fault-based ground to gain certain settlement advantages.

Also, it is not considered abandonment when one spouse leaves as a prelude to a divorce, as long as the spouse continues to honor their financial obligations to the marriage. You have every right to not stay in the same house as your spouse if you don’t want to.

Abandonment is also characterized in legal circles by a set amount of time that a spouse does not meet their marital obligations. In some states, this duration is one year, but laws can vary from state to state.

For couples contemplating divorce, it’s important to know the difference between separation and abandonment. If both spouses voluntarily agree that separation is appropriate, it is not considered spousal abandonment. Separating as a way to evaluate the status of a marriage does not impact the legal rights of either spouse.

Abandonment must cover a specified minimum amount of time and it must be permanent. Also, leaving a spouse due to their violence or abuse does not meet the definition of abandonment as well.

The one area that may be impacted when a spouse leaves the marital home (including legally) is with child custody. If a parent has left their children for a long time, the court may take that into account, determine that the person is not a fit parent, and grant custody instead to the other parent.

Will Abandonment Have an Effect on Finances?

Will Abandonment Have an Effect


As a married couple, you have probably grown to rely on the income of both spouses to create a budget and stability for your family.

When one spouse simply walks away from that delicate balance, it can create extreme financial hardship.

If the spouse who left was the primary source of income for the marriage, this can lead to catastrophic consequences. The risk of losing your home, meeting recurring monthly obligations, and maintaining simple living expenses can be tossed into turmoil.

Even if you have sources of funds you can tap, the stress of being on your own, the anger and fear of an unknown future, a disruption in routines and normalcy, and how this will affect your children can also put you on edge.

In cases of separation where divorce has not yet taken place, a spouse can ask for temporary spousal maintenance until a final settlement can be reached. However, this requires knowing where the other spouse lives, and that’s not always a given when abandonment takes place.

Although a spouse who has committed abandonment still has legal rights to property ownership, the abandoned spouse can use any or all property in the marital home as they see fit. This includes selling the property. It’s probably best to check with an attorney first before doing anything too drastic, though.

Property rights in abandonment cases do vary from state to state. In most cases, an abandoning spouse has forfeited any property rights, and has lost the right to make decisions about abandoned personal and real property. The abandoned spouse also has what is known as the “right of occupancy” which gives them the upper hand in negotiations to create a final settlement.

Read More:  A Guide to Divorce Financial Planning

The Emotional Turmoil Abandonment May Bring

In addition to the financial and legal issues you’ll work through in abandonment, there is also a difficult emotional element to deal with as well. The hardest part is trying to move forward while coping with a complete lack of communication or response from an abandoning spouse.

When a spouse leaves unexpectedly, emotional responses can be similar to those you’d experience in someone’s death. You will have to deal with grief, anger, a lack of closure, remorse, the stigma of a very public and messy situation, and a constant rollercoaster of feelings that aren’t likely to end any time soon.

This will be compounded by the fact that you’ll have a lot more responsibilities heaped upon you. You’ll take on roles that your spouse may have handled in the past. You’ll have to be a mother and a father to your children. And you’ll be the one who has to explain the circumstances of the abandonment to them.

It’s one thing to ease into these roles if you’ve been preparing for them as part of a more choreographed divorce, but quite another when you’re given minimal advance notice.

Being blindsided by abandonment can lead to intense feelings of disbelief and self-doubt as you search for answers that may be a long time in coming. As you might guess, this can lead you straight to debilitating depression.

Related Reading: How to Cope with Divorce as a Man

Abandonment may actually be harder to cope with that a death because your spouse is still alive, somewhere, and you are not able to put any closure to your relationship. It remains an open wound that festers. Birthdays, anniversaries, and the holidays that used to be joyous occasions are now more measured in how you approach them.

At some point, you will readjust and start to rebuild your life. Don’t beat yourself up by overthinking what happened or what went wrong. Wishing that your spouse would just walk back in the door at any time is not healthy either. You are free to forgive and forget if you want, but if your spouse did it once, they could do it again at any time.

This is also no time to deny your feelings or try to be a tough-it-out hero. If you need help, get help. Find a therapist who can help bring a sense of relief to your new reality. Online therapy can be a great, convenient option. Sites like BetterHelp let you choose from thousands of licensed therapists at affordable rates. You can get started with BetterHelp here.

How to Handle Child Custody After Abandonment

How to Handle Child Custody

When a parent commits abandonment, it may give the remaining parent a big upper hand when it comes to child custody issues. This assumes the remaining parent is free from violent or abusive tendencies, or other negative behaviors that are not in the best interest of the child.

If you are the remaining parent, as soon as the appropriate time frame has passed to claim abandonment, you should file for primary physical and legal custody. Now is the time to also file for child support if you haven’t already done so. In cases where you can’t find the other parent, this can be a hollow victory, but you should do it anyway. You never know when the abandoning spouse will return, and you want to be prepared when they do.

You do need to understand that spousal abandonment is not the same as child abandonment, although one frequently accompanies the other. Courts recognize that biological parents do have a fundamental right to be involved in their children’s lives. That’s why courts are hesitant to restrict or deny parental rights, even in abandonment cases.

But courts also expect parents to honor their obligations as well. Legal custody issues will need to be addressed regarding decisions about medical care, schooling, and other important life issues.

In some cases, a parent may want to go to court to prove abandonment, seeking the termination of parental rights. This might be the case if a step-parent is seeking to adopt the child. Normally, both biological parents must agree to the adoption. But if the abandoning parent can’t be found, the remaining parent who has custody may be able to move forward with a termination of rights based on abandonment.

Similar to this, a biological mother may want to place a child up for adoption. This also requires the consent of the father. But abandonment, if proved in court, can modify this situation as well.

Part of what you’ll need to do is also set up a strong support system to help you adjust to your new one-parent reality. Friends and family members may be able to take some of the burdens off of you.

Choose wisely, and be protective.

Read More:  The Ultimate Guide to Child Support

Marital Abandonment and Divorce

Getting divorced is a lot easier than it used to be. In the past, most states required that you state a specific reason for getting a divorce (including abandonment). But now, all states recognize no-fault divorces. This basically means you simply have to claim you can no longer get along with your spouse, and you’ll be granted a divorce.

So why would some spouses pursue abandonment as a ground for divorce?

In most cases, it won’t make a difference, but in some states, when you claim abandonment or any fault-based reason for divorce, it can give you an upper hand in a divorce settlement. You may get more favorable terms in a division of assets, alimony, or in other parts of your divorce where courts have discretion.

The drawback with claiming abandonment is that you are usually required to go through a defined period of abandonment (typically one year) before you can file for divorce. Most states have a much shorter timeframe for finalizing a no-fault divorce. If the abandoning spouse comes back home before that time period expires, the time frame may be reset all over again.

If you’re doing a DIY divorce to save money, consider using an online divorce service. We tested several of the top online divorce companies, and 3 Step Divorce was the best overall. You can get started with 3 Step Divorce for only $84 here.

How to Claim Abandonment

How to Claim Abandonment

Before attempting to claim abandonment, you’ll need to make sure your state allows abandonment as a ground for divorce. Some states are strictly no-fault in nature, and even if abandonment exists, you will not be able to use it as a legal tool.

When using abandonment as a ground for divorce, you’ll need to provide proof to the court that the abandonment actually took place. As the plaintiff, you’ll need to show that the defendant left and has not met their financial obligations for the specified period required in your state. You will also need to prove that you were not the reason why the abandoning spouse left, such as due to abuse or adultery.

Abandonment is not the same as a woman fleeing domestic violence to protect herself or her children. It is also not the same as a man announcing his intentions to divorce and then moving out.

Keep in mind that you could also be weakening your case by walking out on a marriage when children are involved. Your spouse can demonstrate that you are not a fit parent because you walked out on the family for an extended period.

In short, you need to think through your reasons for abandoning your marriage. Similarly, if you have been abandoned, you need to determine the best way to end your marriage while protecting yourself to the highest degree possible.

Looking for more information on divorce?  Check out some of our other popular articles.

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