What is Abandonment?

One of the most used buzzwords that we hear working in family law is “abandonment”. People worry that leaving the marital home will lead to the other party claiming that they abandoned the marriage. So, what is abandonment in family law? Why does it matter? The answer is that it has different meanings in different contexts and different consequences within those contexts.

Alimony

In an alimony dispute, marital misconduct is a factor that can lead to the increase or decrease of an award of alimony by the court. Abandonment is an act of marital misconduct under the relevant statute.  In this context, abandonment occurs when one party ends their cohabitation with the other party without justification and/or consent of the other party. Justification occurs when the conduct of the other party would likely make it impossible for the leaving spouse to continue the marital relationship with safety, health, and self-respect. The spouse alleging abandonment must show a lack of conduct that would cause these circumstances.  Furthermore, if the parties agree to separate, then there can be no abandonment. Finally, there can be constructive abandonment. Constructive abandonment is when one party abandons the other without physically leaving the home. It can be found based on acts of physical or mental cruelty or acts such as willful failure to provide adequate support. Constructive abandonment can be alleged by the party that leaves the marital home, and that party must show that the conduct of the other party made it impossible to stay in the marital home with safety, health, and self-respect.

Divorce from Bed and Board

In order to seek a divorce from bed and board, the plaintiff must show an act of misconduct by the defendant. One such act that falls under the statute is abandonment. Like for alimony, abandonment occurs when one spouse brings an end to the parties’ cohabitation without justification, consent of the other party, and/or intent to renew the cohabitation.  Like alimony, the leaving spouse can allege and prove abandonment if their leaving was compelled by the other spouse. Abandonment can even be found without either party leaving the home, when one party willfully fails to provide support to the other. If a court finds that one party has abandoned the other, they may grant the parties a divorce from bed and board and give possession of the marital residence to the party who was abandoned.

Custody/Termination of Parental Rights

Finally, the act of abandoning a child, either with a government agency, in foster care, or with another party, can result in a loss of parental rights. In the context of a termination of parental rights action, abandonment is defined as willful neglect and a refusal to take on parental obligations of care and support. This can manifest itself as a failure to provide financial support or a failure to make contact or attempt to make contact with the child. If a parent has been ruled to have abandoned their child for six consecutive months, grounds may exist for terminating that parent’s legal right to have custody of their child. Furthermore, if a parent or both parents willfully leave the minor child in foster care for twelve consecutive months, then grounds may exist to have their parental rights terminated.

If you believe your spouse has abandoned you or your children, or you wish to leave your spouse without having them allege that you abandoned them, then call Garrett, Walker, Aycoth & Olson, Attorneys at Law, about making an appointment with one of our family law attorneys today.