Fault-based Divorce: Abandonment
The term “divorce” describes the dissolution of the marital relationship. In the United States, divorce is a matter of state law. The grounds under which the parties may claim divorce are divided into fault-based and non-fault based divorce. In fault-based divorce, one party must prove that the other party is “at fault.” Abandonment is one ground for establishing the required “fault” in a fault-based divorce.
Abandonment and desertion
Abandonment, also known as “desertion,” is a ground for fault-based divorce in a majority of states. Abandonment is defined as one spouse’s leaving the marital home without the other spouse’s consent and without any justifiable reason. Some courts have drawn a slight distinction between abandonment and desertion by stating that desertion involves an intention to sever the relationship, but abandonment does not have that requirement. Some state statutes require that there must be a continuous abandonment for a certain period of time before the filing of a divorce petition.
The statutory period of abandonment differs from state to state, generally varying from one to five years. Some of the states consider abandonment for 6 months based on the facts and circumstances of the case. The main requirement of abandonment is that it must be continuous and uninterrupted. To elevate abandonment to desertion, most states require proof that the departed spouse left the marital home without the other spouse’s consent or without any justifiable reason.
Withdrawal from the society of the other spouse without lawful cause and an intention to end mutual cohabitation are the two major elements involved in abandonment. The acts constituting abandonment differ from state to state.
Mutual agreement to live separately
An agreement between husband and wife to live separately does not come within the purview of desertion or abandonment, so consensual separate living will not amount to desertion or abandonment. If employment requires one of the spouses to move from the marital home, that will not amount to abandonment. Abandonment can arise if the moving spouse’s job is the only source of family income and the other spouse refuses to move.
Constructive abandonment comes into picture when a party is constrained to leave the marital home due to the other spouse’s conduct. Constructive abandonment does not require leaving the marital home, but it implies a departure from the matrimonial relationship. A spouse’s refusal to perform, or withdrawal from performing, marital responsibilities can constitute constructive abandonment. A court considered a husband’s continuous refusal of sexual relations with his wife for a long period of time without any valid reason to be constructive abandonment. A spouse’s refusal to lend economic support to the family also was considered constructive abandonment.
Abandonment is considered a traditional ground for fault-based divorce. The party claiming divorce on the ground of abandonment must prove an intention to end the marital relationship, not merely a physical separation.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.