Divorce and Abandonment

Abandonment, also referred to as desertion, is defined as the willful and intentional act of leaving one's spouse without the intention of returning and without the consent of the abandoned spouse.  Abandonment and desertion are considered grounds for divorce. Proving abandonment also depends on the time of abandonment involved. Divorce and abandonment generally happen together.

Proving Abandonment

Generally, several elements must be proven in order to win a divorce case on the grounds of abandonment or desertion. First, the party claiming abandonment must demonstrate that his or her spouse left the marriage with no intention of returning.  Next, the party claiming abandonment must show his or her spouse remained away from the Marital Home for a specific amount of time. Divorce laws varies from state to state, but at a minimum, the abandoning spouse must have been gone for at least one year. 

Finally, in most states, the party claiming abandonment must also prove that his or her spouse left the marriage without good reason.  In other words, the party claiming abandonment must successfully demonstrate that the marriage was viable but for the abandonment by the other spouse.  If one spouse is driven off by the other spouse, most jurisdictions will not find abandonment.

In some jurisdictions, acceptance of support from the deserting spouse is not considered consent.  However, in others it is.  Additionally, some jurisdictions require the party filing for divorce to demonstrate that he or she unsuccessfully attempted to save the marriage.  Moreover, in some states, denial of conjugal relations to the other spouse for the statutory period of time, even though the parties continue to live together in the martial home, may be treated as abandonment.

Time of Abandonment

The length of time apart required to prove abandonment or desertion varies by jurisdiction.  However, in all jurisdictions, the timeline on abandonment begins when a spouse leaves the martial home and continues to run until such time as the abandoning spouse returns to the marital home.  This means that if the parties reconcile after a period of abandonment and later one spouse again abandons the marital home, the two periods of abandonment cannot be tacked together in order to satisfy the jurisdictional requirements pertaining to the length of time apart.

Abandonment And Desertion

A few states treat abandonment and desertion as two separate grounds for divorce.  In these states, to successfully prove desertion, a party must show that his or her spouse left the marital home with the intent of actually ending the marriage.  So, if a party leaves the marital home, but continues to hold himself or herself out as the spouse of the other party, there is no desertion.  Abandonment, on the other hand, only requires absence from the marital home for the time period specified under the laws of the state in which the divorce case is filed.

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