Recently, I have been meeting prospective clients who are afraid to leave their unhappy marriages and homes for fear of being accused of abandoning their spouses and/or their children. The most emotionally destructive thing that can happen to a person is staying in an emotionally harmful space without any way out. The feeling of being physically and emotionally trapped generally causes depression and can lead to anger. Anger can lead to the development of other behaviors which are not only detrimental to the physical and mental health of spouses, but also to the other members of the household, including the children.
Most people think that leaving their spouse constitutes abandonment. I am here help you turn fear into power by telling you that is not true. The legal definition of abandonment, as it pertains to divorce, is very specifically set out within the law. In order to succeed on an abandonment claim your spouse must prove that:
1. The other party has been away from the home for over one (1) year
2. That the other party left the home for no justifiable reason;
3. That the other party left the home voluntarily, but without the consent of the other
4. That the spouse who left has no intent to return to the home to cohabitate with his or her spouse.
In the State of New Jersey, the abandonment ground is called “desertion” and occurs under the same facts as those which must be alleged in New York.
That said, with the passage of the newest (2010) ground for divorce, the irretrievable breakdown of the marriage, most divorces are being filed without alleging any fault at all. The irretrievable breakdown ground erases the need to throw mud at the other spouse and is an option for parties whose circumstances do not rise to the level of the other six (6) grounds for divorce.
It is important to know that the grounds for divorce do NOT generally impact either parties’ standing in a divorce. For instance, you will not receive any more or any less in assets or support because your spouse has abandoned you. (You will not in any way be legally punished for leaving the household. The fact that your spouse may file for divorce under the ground of abandonment, will likely pose no legal threat to you. Usually, spouses use this ground as some sort of threat, as though it will in someway hurt the other’s character in the eyes of the court. What does hurt one’s character in the eyes of the court is cutting off the relational or financial support given to children. Otherwise, you do not need to have any particular fear of being accused of abandonment.
If you are thinking about leaving, but you are not sure where to start, schedule a legal strategy session with me today and start your path toward Turning Fear Into Power When Happily Ever After Fades Away.