What Is Considered Marital Abandonment in New York? 2024

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.

Legal Definition of Abandonment

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.

Types of Marital Abandonment

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:

  • Physical Abandonment
    The most common form of spousal abandonment, physical abandonment occurs when one spouse leaves the marriage without an 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 determination.
  • 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 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 AbandonmentIf 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 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.

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.

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.


What Are the Elements of Abandonment in New York?

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.

What Is a No-Fault Divorce?

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.

What Are Some Consequences of Marital Abandonment?

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.

Should I Speak to an Attorney If I Have Been Abandoned by My Spouse?

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.

Establishing Abandonment

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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