Divorce Misconceptions: Abandonment
I cannot tell you the number of times I have been asked this question in some iteration; “He moved out of the house, that means I can get him for abandonment, right?” or “I can’t move out because that would be abandonment.” Somehow, some way, this idea has entered the zeitgeist to vacate the marital home will have negative consequences that range from losing your interest in said property to losing custody and everywhere in-between. So, let’s strip away what you’ve heard, or what your cousin’s wife said about her sister’s divorce and look as what abandonment really means in the context of a divorce.
Abandonment and Grounds for Divorce
Before we can really dive into the issue of abandonment, we must first discuss grounds for divorce. Grounds for divorce are statutorily recognized reasons for the Court to divorce married parties. Without one of the identified reasons, then the court cannot enter a divorce. Alabama statute (30-2-1(a)) identifies 12 grounds for divorce. They are as follows:
- Crimes against nature
- Addiction to drugs/alcohol
- Mental incapacity/insanity
- Irretrievable breakdown
- Non-support and separation
So, as you can see, abandonment is a reason for divorce, along with several other grounds. In order to divorce your spouse, you must prove (to the court’s satisfaction) the ground that you allege. Here is an analogy that I have used often. Grounds for divorce are like different paths through the woods. Some are winding trails, with a lot of foliage in your face. Other grounds, such as incompatibility or irretrievable breakdown, are paved and well-lit. No matter the path you take, the destination is the same. Each ground has different factors that must be proven for the Court to grant a divorce based on said ground. Regardless if you are divorced by reason of adultery or incompatibility, the result is the same.
Ok, back to abandonment. Abandonment is a reason for divorce. In order to receive a divorce on the grounds of abandonment, you must show that your spouse voluntary departed from you without your consent, without just cause, with no intention to return, and that said departure occurred at least a year prior to filing for the divorce. If your spouse just moves to another room in the house then it’s not abandonment. If your spouse has just cause to cease cohabitation, such has inadequate living conditions, then it’s not abandonment. If your spouse leaves but has the intention of returning, like leaving for military service or for work for a period of time, then it’s not abandonment. If your spouse moved out last month, then it’s not abandonment. All of these elements must be proved to the court, including the spouse’s intention to not return. This can be a difficult task.
So why would you file a divorce for abandonment? Is there a better way, an easier path through the woods? Does anyone still use abandonment as grounds for divorce? You wouldn’t; there is; and no in that order.
Is a Divorce due to Abandonment Beneficial?
I cannot see an objective advantage or benefit to seeking a divorce on the grounds of abandonment. As mentioned earlier, it is a winding path that leads to the same place and the paved road of incompatibility or irretrievable breakdown. I suppose that there may be personal or religious reasons to seek a divorce based on abandonment, but that has no real barring on the outcome of the divorce. Because of this, most people seek a divorce on what is called a no fault-based ground. All the grounds for divorce listed above with the exception of incompatibility and irretrievable breakdown are fault-based grounds, and at one point those were the only grounds available. This means that if you and your spouse wanted an amicable divorce in the 1960’s, you had to prove that one of you cheated on the other, or committed a crime against nature, or abandoned one another. Now that no-fault-based grounds of incompatibility and irretrievable breakdown are available, a marriage can end simply because one party no longer wishes to be married.
In a divorce, no matter the grounds, the Court will equitably divide marital assets. If you move out of the house and go stay with your family, or get an apartment, you do not lose the interest you hold in the marital property. That being said the court can consider fault in dividing the property. Let’s say you leave the home and stop contributing to the mortgage. The court could give your spouse a greater percentage of the property due to your misconduct or because your spouse added value to the property without your contribution.
Finally, you leaving the house like a thief in the night can have implications in child custody cases. The parent remaining in the home with the children will often be consider the primary caregiver, which gives that parent the upper hand. If children are involved it is best to reach an agreement regarding each parent’s period of visitation before either party moves out. If you find yourself in a similar predicament then it is best for you to speak with a family law attorney before you take any other steps.