During a divorce, it is not an uncommon belief that moving out of the marital home during the divorce can have negative effects on the proceedings and even 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.
In legal terms relative to your marriage, 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.
There are several types of marital abandonment that pertain to a physical or emotional withdrawal from the marriage. The main forms of marital abandonment include:
Understanding the different types of marital abandonment can help you proceed in your separation or divorce. Contacting an experienced divorce attorney can assist you in determining if you have been abandoned or if your actions constitute abandonment.
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:
To prove an unjustified abandonment, the abandonment cannot have been a result of the deserted spouse’s provocation or consent.
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:
A: There are three main elements that must be proven to successfully claim abandonment. 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.
A: Historically, New York residents needed to prove fault for a divorce to be granted. One of the valid grounds for divorce was 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.
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.
A: There are many ways an attorney can be useful if you have been abandoned by your spouse. They can help you determine if you meet the legal requirements of being abandoned. They can also aid you in gathering all appropriate evidence to support your claim and fight for your rights once your claim is heard by a judge.
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.
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