Many couples wanting to divorce often ask, “What is considered marital abandonment in New York?” During a divorce, it is a common belief that moving out of the marital home during the divorce can have negative effects on the proceedings. Some even believe that it may result in the other spouse claiming abandonment.
Fortunately, this belief is not true. In most cases, moving out of the marital home is not a major issue. There are, however, instances where a spouse can claim abandonment, and it will impact the divorce.
Choose an Experienced New York Family Attorney to Represent Your Marital Abandonment Case
When proving marital abandonment, you need a skilled lawyer to guide you through legal proceedings and the state’s family laws. Jonathan Trotto of Trotto Law Firm, P.C., has spent the last 17 years focusing solely on family law matters. He comes from a family of attorneys and has dedicated his professional life to helping his New York neighbors and community get through their toughest times in life.
When taking on a divorce case, especially one involving marital abandonment, you’ll need an attorney who can make the process as streamlined as possible. Let our firm take care of your case so you can focus on your well-being during this challenging time.
Legal Definition of Abandonment
In legal terms, abandonment occurs when one spouse leaves the marital home without the agreement, consent, or communication of the other spouse. Even if the spouse does not leave the home entirely, abandonment can be claimed if they withdraw support or involvement – either sexual or emotional – from their spouse.
Types of Marital Abandonment
Several types of marital abandonment pertain to a physical or emotional withdrawal from the marriage. The main forms of marital abandonment include:
- Physical abandonment. The most common form of spousal abandonment, physical abandonment, occurs when one spouse leaves the marriage without any intent to return or provide for the other spouse’s financial and emotional needs.
- Economic abandonment. When a spouse intentionally removes financial support, such as refusing to contribute to household expenses or not fulfilling the family’s financial needs, it is deemed economic abandonment. Since this can harm the family unit, it may become a factor in how marital assets are distributed during the divorce. It may also impact spousal support determinations.
- Constructive abandonment. Also known as emotional abandonment, constructive abandonment occurs when one spouse is no longer emotionally involved in the marriage or refuses to partake in sexual relations without a valid justification. The affected spouse may choose to file an at-fault divorce if this abandonment impacts their mental health, emotional well-being, and the stability of the marriage.
- Criminal abandonment. If a spouse leaves or refuses to provide support or care for their child or ailing spouse, it is considered criminal abandonment. The court can issue an order that requires the abandoning spouse to provide financial assistance and care.
Abandoning your child can also have legal consequences, as New York law states that both parents have a responsibility to support a child’s well-being.
Understanding the different types of marital abandonment can help you proceed with your separation or divorce. Hire a family lawyer to determine if you have been abandoned or if your actions constitute abandonment.
Three Common Ways Marital Abandonment Is Pleaded in New York
In 2024, approximately 4,382,123 married couples resided in New York State. That same year, there were about 1,688,716 divorced people living throughout the state. The process of divorce can be a difficult undertaking, especially when one spouse has been abandoned by the other. Marital abandonment in New York often appears in three ways:
- One spouse physically leaves the marital home and doesn’t return for more than one year without the other spouse’s consent or a valid reason.
- A spouse refuses to have sexual relations for at least one year, despite repeated requests from the other spouse, and doesn’t offer a good cause or reason for it.
- One spouse intentionally prevents the other spouse from accessing the marital home for over one year, without the other spouse’s consent or a valid reason. This can include the spouse changing the locks on the home to prevent the other from entering, or they may simply refuse them entry.
Spousal Abandonment in New York
Properly defining abandonment is important in a marriage and divorce because it is recognized as grounds for a fault-based divorce under the physical or constructive abandonment category. When seeking a fault-based divorce, the deserted spouse must prove that there was:
- An unjust and continuous separation of the two spouses
- A refusal of sexual relations
- The desertion of the marriage for a period of at least one year
To prove an unjustified abandonment, the abandonment cannot have been a result of the deserted spouse’s provocation or consent.
How to Prove Spousal Abandonment in New York
Courts in New York typically need extensive evidence to prove marital abandonment. This proof needs to show what happened and how long the abandonment lasted. Your attorney can explain what evidence to collect, including:
- Test messages, emails, and other written communication. These can show that the spouse was leaving, refusing to come home, or refusing to engage in sexual relations.
- Proof that each spouse was living separately. This can include leases, utility bills, change-of-address forms, or pay stubs with the new address.
- A written timeline of events. Be sure to have important calendar dates, such as when the spouse left, was denied entry to the home, or refused to engage in sexual relations.
- Witness testimony to confirm the abandonment. Testimony can involve official statements from loved ones, such as friends and family members, neighbors, or apartment building staff and workers.
Evidence can vary case by case. This is general information and should not be taken as legal advice.
Rights of an Abandoned Spouse
All the legal rights and obligations within a marriage stay valid until an official divorce order is granted by a judge. This remains true, even if one spouse abandons the other for a period of time. These rights can include:
- Spousal maintenance. A spouse who has been abandoned has the right to apply for spousal support as a route to minimize any financial disparities between the spouses. It is important to note, however, that an abandoned spouse is not always entitled to maintenance. The court will examine the case and consider relevant factors, including the abandonment, when determining if and what the payments should be.
- Child custody and support. Both parents have a legal obligation to emotionally and financially support their children, and both have the right to legal custody. However, the abandoned spouse can file a petition for a custody order to establish themselves as the child’s sole custodial parent. The abandoning spouse can also be compelled to pay child support, as they are still financially responsible for their child.
- Equitable marital property distribution. Even in cases of abandonment, both spouses are still entitled to an equitable division of marital property. This changes, however, if one spouse intended to cause financial hardship or took marital property when they left. The abandoned party may be awarded more marital property to compensate for these actions.
FAQs
Q: What Are the Elements of Abandonment in New York?
A: Three main elements must be proven to successfully claim abandonment in New York. It must be shown that the spouse left voluntarily with the intention of not returning and that they had no valid justification for their departure. It must also be shown that the abandonment lasted for at least a year.
Q: What Is a No-Fault Divorce?
A: Historically, New York residents needed to prove fault for a divorce to be granted. One of the valid grounds for divorce is abandonment. However, no-fault divorce was established in 2010. This allowed residents to divorce their spouses without proving fault. Although no-fault divorces do not require fault to be shown, negative actions, like abandonment, can still impact divorce proceedings. Also, you are still permitted to file for divorce on fault-based grounds.
Q: What Are Some Consequences of Marital Abandonment?
A: The potential consequences of marital abandonment depend on the circumstances of the marriage. For example, in a marriage that shares children, abandonment will have more consequences. Abandoning your family can impact the type of child custody you are awarded and the access you have to your children. Even if you do not share children, you may be required to pay more spousal maintenance or lose some marital assets that your spouse now has a stronger claim to.
Q: Should I Speak to an Attorney If I Have Been Abandoned by My Spouse?
A: There are many ways an attorney can be useful if you have been abandoned by your spouse. They can determine if you meet the legal requirements of being abandoned. They can also aid you in gathering all appropriate evidence to support your claim. An attorney can advocate for your rights once your claim is heard by a judge. Your family attorney can also explain the costs involved in the legal process.
Hire a Family Lawyer From Trotto Law Firm, P.C., Today
Trotto Law Firm, P.C., can help you establish abandonment and proceed with your divorce in the most effective way. Contact our office today for a marital abandonment consultation. You shouldn’t have to navigate this difficult time by yourself. Our skilled team can offer the legal guidance you need to move forward in life.
