Written By:
Divorce.com Staff
Marital Abandonment and Divorce: What You Need to Know
Some breakups happen without the knowledge of one partner. If your spouse leaves and never returns, you may be experiencing marital abandonment. Divorce is often the natural next step—but the circumstances surrounding the abandonment can affect how (and whether) abandonment matters in your divorce.
What Is Marital Abandonment?
Marital abandonment is a legal term meaning one spouse moves out without the other spouse’s knowledge or consent, and does so with the intent to leave the marriage.
To qualify as abandonment, the spouse must leave without legal justification. For example, leaving due to a dangerous or unsafe situation can be a valid justification and may not be considered abandonment.
There are two primary legal categories:
Criminal marital abandonment
Constructive marital abandonment
Criminal Marital Abandonment
Criminal marital abandonment occurs when one spouse is dependent on the other for care or financial support, and the supporting spouse abandons them without justification.
Example: If a spouse becomes seriously ill and the other spouse leaves to avoid supporting them, that may be criminal marital abandonment.
Courts may hold the abandoning spouse accountable, including by ordering:
Spousal support, and/or
Child support (when children are involved)
Constructive Marital Abandonment
Constructive abandonment applies when a spouse leaves because remaining in the marriage is unsafe or intolerable.
If your spouse is cruel, abusive, or makes you feel unsafe, you may be compelled to leave without prior notice. When leaving is necessary for safety or well-being, it is generally treated as constructive marital abandonment, and the departing spouse is not considered at fault.
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Are There Other Types of “Abandonment” in Marriage?
Some forms of abandonment have serious emotional consequences but are usually difficult to use as legal claims in court. Examples include:
Emotional abandonment: feeling ignored or unsupported, especially during stress or grief
Physical abandonment: living in the same home but with a complete lack of intimacy
Spiritual abandonment: one spouse abandoning the religion both spouses previously shared
These experiences may matter personally, but they are typically harder to prove and may not meet the legal definition of abandonment.
What If I Need to Leave My Spouse for Safety?
If your spouse is cruel or abusive and you have a safe opportunity to leave, you should take it. This generally falls under constructive abandonment, and courts typically do not punish someone for leaving to seek safety.
Recommended steps after leaving safely:
Find a secure place to stay
Contact law enforcement
Consider requesting a restraining order
In many cases, you are not required to disclose your address if doing so could put you or your family at risk.
If your spouse later claims you abandoned them, a restraining order and related police records can help establish that your departure was justified.
What If My Spouse Abandons Our Children?
Divorce and custody are separate legal issues, but they are often addressed at the same time.
If a parent has abused, neglected, or abandoned a child, the court is less likely to award that parent custody. Judges must prioritize the best interests of the child, and awarding custody to a parent with a history of abandoning the child generally conflicts with that standard.
Even if the abandoning parent does not receive visitation, the court may still order them to pay child support. If they fail to pay, the court may enforce support through remedies such as:
Wage garnishment
Suspension of driving privileges (in some jurisdictions)
Can Marital Abandonment Be Repaired?
It can only be repaired if both spouses want to repair it.
If the abandoning spouse is willing to engage in steps like couples therapy, reconciliation may be possible. However:
You cannot legally force an abandoning spouse to return
Only one spouse needs to file in order to start a divorce
When Do You Need to Claim Marital Abandonment?
Marital abandonment becomes most relevant when:
You live in a state that allows fault divorce, and
You want abandonment to be part of the legal basis for divorce or settlement arguments
Fault Divorce and Marital Abandonment
In fault divorce states, marital abandonment can be used as a legal claim that the other spouse is responsible for the marriage ending. In some cases, proving fault can affect outcomes such as financial awards.
Fault divorce works somewhat like a lawsuit: if one spouse is found at fault, a court may award relief in the form of financial orders or other remedies.
States That Allow Fault Divorce
Alabama
Alaska
Arizona
Arkansas
Connecticut
Delaware
Georgia
Maryland
New Jersey
New York
North Carolina
South Carolina
Vermont
Virginia
Washington, D.C.
Claiming Marital Abandonment in a Fault Divorce State
If you claim abandonment in an at-fault state, you must prove that:
Your spouse left without consent, and
They intended to abandon the marriage, and
They lacked legal justification
Evidence may include:
Documentation showing ignored contact attempts
Messages indicating intent to leave or not return
Other records supporting the timeline and circumstances
If you are accused of abandonment, your defense may be that you were justified in leaving—especially in cases involving cruelty or abuse.
Marital Abandonment in a No-Fault Divorce State
In most no-fault states, abandonment usually does not affect the outcome because either spouse may seek divorce for any reason.
Key exception: missing spouse
If you cannot locate your spouse after making reasonable efforts, you may be able to proceed without them. In these cases, you may qualify for:
Alternative service methods (such as notice by publication), and/or
A default judgment if they do not respond
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How to File for Divorce When Your Spouse Abandons You
If you live in a fault divorce state
You will likely need an attorney to file an at-fault divorce and present evidence supporting your abandonment claim.
If you live in a no-fault divorce state
You may still need legal help if:
You cannot locate your spouse, or
Your spouse is uncooperative
In either case, you typically must:
File for divorce in court
Make a reasonable effort to locate and serve your spouse
Use alternative service methods if permitted (e.g., publication)
Proceed to:
A normal case if they respond, or
A default judgment if they do not
How to File for Divorce When You Can Locate Your Spouse
If you can locate your spouse, they may be open to divorcing—often people don’t leave because they want the marriage to continue.
If you live in a no-fault state, it may be most efficient to pursue an uncontested divorce:
Discuss settlement terms
Reach agreement
File paperwork
Attend a brief hearing (in many jurisdictions) for court approval
If your spouse refuses to cooperate, you may need to hire a lawyer and proceed through formal family court litigation. Courts can compel participation and require document production.
What Happens After Your Divorce?
Once the divorce is final, your spouse must comply with the settlement or court orders, including:
Support payments (if ordered)
Custody and visitation terms (if applicable)
If there are no children and no ongoing obligations, your spouse may have no reason to maintain contact—as long as they comply with court orders.
Why Marital Abandonment Matters
Certain types of marital abandonment can substantially affect how a marriage ends:
In fault states, it can support entitlement to favorable financial outcomes
In no-fault states, it can enable divorce without the spouse’s participation if they cannot be located
If abandonment is a factor in your situation, consider consulting a local family law attorney to review facts and options.
