What You Need To Know About Marital Abandonment

By Divorce.com staff
Updated Nov 16, 2022


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Some breakups happen without the knowledge of one of the partners. If your spouse takes off and never returns, you could be experiencing marital abandonment. Divorce is a natural conclusion in cases of marital abandonment, but the circumstances surrounding the situation will affect how you can file for divorce.

What Is Marital Abandonment?

Marital abandonment is a legal term that means one spouse has moved out of the house without the knowledge or consent of the other partner with the intention to leave the marriage.

To be considered marital abandonment, the person who left has to do so without a justification. For example, if a partner is put in a dangerous situation, this is considered a justification for leaving without the knowledge or consent of the other partner.

There are two types of marital abandonment: criminal marital abandonment and constructive marital abandonment.

Criminal Marital Abandonment

Criminal marital abandonment happens when one spouse is dependent upon another spouse for care or financial needs. If a spouse becomes seriously ill and the other spouse leaves because they don’t want to be responsible for their sick spouse’s support, this is an example of criminal marital abandonment. It isn’t a sound justification for leaving the marriage.

People who fail to meet supportive obligations to their spouse and their children by abandoning them can be held accountable for their actions, usually by the decisions of the court. The court may order the abandoning spouse to pay a significant amount of child support or spousal support if they choose to abandon their marriage without a valid reason.

Constructive Marital Abandonment

If your spouse is cruel, abusive, or makes you feel unsafe, you may feel compelled to leave without discussing it first. If you abandoned your marriage for your own safety or well-being, this is considered constructive marital abandonment. It may have been necessary for you to leave, and you cannot be found at fault for leaving.

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Are There Other Types of Marital Abandonment?

There are other ways that people can feel abandoned in a marriage, but they usually can’t be used to make a legal argument regarding marital abandonment. Other types of abandonment can have serious consequences to the emotional and mental health of the abandoned partner, but they’re much more difficult to prove in court.

A spouse can abandon their partner emotionally. One partner may feel ignored or unsupported through times of increased stress, strain, or grief. There is physical abandonment, where both partners remain in the same home with a complete lack of intimacy in all forms.

There’s also spiritual abandonment, in which one spouse suddenly stops practicing or adhering to the religion both spouses shared at the beginning of the marriage.

What If I Need To Abandon My Spouse?

If your spouse is cruel or abusive and you have an opportunity to leave without communicating to your spouse, you should take that opportunity. Situations like these fall under the umbrella of constructive abandonment. The court will not punish you for seeking safe haven and getting help.

Any opportunity to get away safely and find a secure place to stay is an opportunity worth taking. After you’ve safely arrived at your new destination, you should contact law enforcement.

If you request protection from your spouse, law enforcement can help. You aren’t required to provide your address when requesting a restraining order if providing your address could place you or your family in danger. Your spouse does not need to know where you are.

If your spouse attempts to claim spousal abandonment in court, your restraining order and any relevant police records will be proof enough that you didn’t abandon your spouse.

What If My Spouse Abandons My Children?

Divorce and child custody are two separate court processes, but they typically take place at the same time. Children are heavily impacted by divorce, so the matter is usually settled simultaneously. It’s especially important to settle custody and child support matters as soon as possible if one parent has a tendency to disappear or become difficult to reach.

If your spouse abandons your children, this will likely affect the legal custody process. A judge will be less likely to award any type of custody to a parent that has abused, abandoned, or neglected their children. It’s the court’s job to advocate for the best interest of children, and awarding custody to someone with a history of abandoning them is never in a child’s best interest.

The abandoning parent will likely still be ordered by the court to pay child support, even if they aren’t allowed visitation with their children. The court can hold them accountable if they fail to make their court-ordered child support payments. The court can garnish their wages or even suspend their driving privileges if they don’t fulfill their end of the agreement.

Can Marital Abandonment Be Repaired?

Marital abandonment can only be repaired if both parties want to repair it. If your spouse is interested in pursuing things like couples therapy, you may be able to repair the situation. You cannot legally compel a spouse who abandoned you to return to you and remain married to you. Only one person needs to request a divorce in order for the divorce process to start.

When Do You Need to Claim Marital Abandonment?

It’s important to understand marital abandonment if you believe you’re experiencing marital abandonment. Marital abandonment could be an important factor in your divorce, particularly if the state you live in will allow you to file for a fault divorce.

What Is a Fault Divorce, and How Does It Relate to Marital Abandonment?

Marital abandonment is a legal claim that insists the other person is to blame for the divorce. The abandoned spouse can claim a settlement or an award from the other spouse if their abandonment is the reason why their marriage ended. In some cases, marital abandonment won’t make a difference in the outcome of your divorce.

States that allow fault divorce give one party the power to hold the other party accountable for their role in the failure of the marriage and grant special permissions and rights to one spouse when the other spouse is found at fault. It’s a lot like a lawsuit, where the at-fault spouse is ordered to award damages.

The following states allow for 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 an At-Fault State

If you decide to claim marital abandonment in a fault divorce state, it’s up to you to prove that your spouse’s actions constitute marital abandonment. You have to file for an at-fault divorce through the court and provide sufficient evidence to the court that your spouse should be held accountable for their actions.

You will need to provide documentation of the event. You may need to prove that your spouse ignored attempts at contact or that they specifically expressed an intention to abandon you.

If you’re the one being accused of abandoning your marriage, it’s up to you to prove that your actions didn’t indicate abandonment. If your spouse was being cruel or abusive, you were justified in your decision to leave. The court can’t find you at fault if your abandonment of the marriage was to preserve your own safety.

Marital Abandonment in a No-Fault Divorce State

Marital abandonment usually doesn’t matter in a no-fault divorce state. No-fault divorce states allow one partner to leave another for any reason at all, even if there is no clear justification. You can technically walk away at any moment.

There’s sometimes no point in claiming that your spouse abandoned you because their abandonment won’t necessarily matter in the divorce process.

The only exception is when you cannot locate your spouse. If the abandonment involves your spouse being impossible to find through all reasonable efforts, you’ll be able to file for divorce without your spouse present. This type of abandonment proves itself. If no one knows where your spouse is or is offering up information about where you can find them, it’s considered abandonment.

You may be able to get a special default judgment on your divorce. Your spouse doesn’t need to be a part of the divorce process if they cannot be found.

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How To File for Divorce When Your Spouse Abandons You

If you live in a fault divorce state, you’ll need the help of a lawyer to file for a fault divorce. If you live in a no-fault divorce state, you may need the help of a lawyer if you cannot find your spouse or if your spouse is being uncooperative.

You’ll need to file for divorce with the court and make a reasonable effort to locate your spouse. Your state will tell you what the requirements are. Some states may allow you to publish a notice in the newspaper stating that you’re filing for divorce. Your spouse will have time to respond to your request for divorce.

If they do, your divorce will become a formal divorce in family court. If they don’t, you’ll be awarded a default judgment in the divorce. That’s where a judge will rule for the divorce exclusively in your favor. Your spouse may be ordered to pay child support in the event that they’re ever successfully located.

How To File for Divorce When You Can Locate Your Spouse

If you can locate your spouse, it’s likely that your spouse will be open to the idea of a divorce. To state the obvious, people don’t walk away from their marriages because they want their marriage to continue. Your spouse may want to get things over with as quickly as possible.

If you live in a no-fault divorce state, there’s no point in attempting to hold your spouse accountable for abandonment. You can try to save yourself time and trouble by filing for an uncontested divorce. Talk to your spouse about what they want or need from the divorce settlement, come to an agreement, and file the paperwork.

You’ll only need to make one court appearance for a hearing after you’ve filed the paperwork. The judge will verify that you both agree to the terms of your divorce and grant your divorce.

If your spouse is against the idea of divorcing or filing for an uncontested divorce, you’ll need to hire a lawyer and escalate the situation to a family court divorce. The court has the power to compel your spouse to comply with the divorce process and provide the court with important documents.

What Happens After Your Divorce?

Your spouse will be required to comply with the terms of your divorce settlement, whether they’re terms the two of you decided on your own, or they’re terms the court has decided. Your spouse is required to make any payments they’ve been ordered to pay and abide by any custody agreements that were decided during the divorce process.

If you don’t have children or if your spouse doesn’t have any custody of your children, they never need to speak to you or your family again. As long as they’re fulfilling the obligations the court requires them to fulfill, they’re free to live their own life.

Marital Abandonment Can Heavily Impact the Way Your Marriage Ends

Certain types of marital abandonment will have a huge impact on the way your marriage ends. It can mean that you’re entitled to more in a fault divorce state. It can mean that you’re able to get divorced without the presence or express consent of your spouse in a no-fault divorce state.

If you need help navigating a divorce where marital abandonment is a factor, you may need to connect with an independent local family law attorney to review your case and discuss your options.

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