If you’re separating from your spouse, it’s important to understand that different states have various laws on how they handle divorce and alimony. Some are “fault-based,” and others are not. In a fault-based divorce, your spouse’s behavior or conduct may play into how much spousal support you will receive, and how property is divided. Fault-based grounds for divorce like abuse, cheating, and abandonment by spouse can all impact your case.
In some cases, your spouse’s behavior may also qualify as a form of domestic violence. For example, if your spouse repeatedly hit you or threatened you with physical harm, this could be a serious issue that you should discuss with your attorney. However, this does not mean that your marriage will automatically end in a divorce on the grounds of abuse or violence. If your spouse has abused or threatened you, but has not physically struck you, this is not a ground for divorce.
Many states, including New York, have moved away from the use of fault-based grounds for divorce. However, divorce by abandonment is still a valid ground in New York if you can prove that your spouse left the marriage without cause or refused to have sexual relations with you for a continuous period of one year or more. Abandonment by spouse is also a possible ground for divorce in New York if you can prove that you and your spouse lived separately as part of a trial separation or in anticipation of filing for divorce, and that you separated for at least a year.
There are two forms of abandonment by spouse: actual and constructive. Actual abandonment involves your spouse leaving the home with the intent to never return, or they locking you out of the house. Constructive abandonment is when your spouse’s bad behavior causes you to leave the marriage emotionally and does not involve leaving the family home. This can include things such as emotional and mental cruelty, infidelity, or refusing to provide financial support.
While physical and emotional abandonment by spouse are clear issues that can lead to a fault-based divorce, other acts of bad behavior can also lead to an uncontested divorce. For example, if your spouse’s alcoholism leads to cruel or violent behavior while intoxicated and you fear for your safety, this could be a reason to file for divorce. However, this is only a possible ground for a divorce and does not necessarily imply that you will be awarded alimony or a greater share of the property in the divorce settlement.
The key to proving abandonment by spouse is to show that the deserting spouse left the marriage with no intention of returning and that they did not have sexual or marital relations during this time. This can be proven through things such as rental agreements, utility bills, bank records, and even witness testimonies from friends or neighbors. However, since most marriages are very private affairs, it can be difficult to obtain relevant evidence of your spouse’s actions.
The financial, legal, and emotional ramifications of divorce can be incredibly difficult for both spouses. Many couples work through issues like the division of property and spousal support, or alimony, which is intended to help the lower-earning spouse maintain the standard of living they enjoyed during their marriage. While no-fault divorces have made it possible for many people to end their marriages without stating any particular reason, certain fault grounds, such as abandonment by spouse, may still allow spouses to gain an advantage in the settlement process.
Abandonment by spouse is a common ground for divorce in some states, and can include either physical or constructive abandonment. In a physical form of abandonment, one spouse moves out of the home and does not return for a specified period, which varies from state to state. Constructive abandonment is a more complicated issue, and can be found when one spouse does not meet their marital obligations for a specific period of time, which again, varies by state.
In New York, it is possible to file for a divorce based on either physical or constructive abandonment by spouse. However, to prove either, the plaintiff must have proof that the defendant abandoned them for a specific period of time, which can vary by state. In addition, the reasons behind the abandonment must be legitimate and cannot be attributed to provocation or the plaintiff’s consent.
When considering whether to file for divorce, it is important to consider all the implications of doing so, including custody. While fleeing a dangerous situation, such as domestic violence, can be a valid reason for separating from a spouse, it does not constitute abandonment since the person leaving did so with the intention of returning and the willingness to provide support to their spouse and family members. A spouse who has no intention of returning to the marriage, or refuses to provide support, is considered to be engaging in constructive abandonment and could face consequences.
While it is impossible to know how a court will rule on child custody cases until a final settlement has been reached, it is important to remember that abandonment by spouse does not necessarily disqualify a spouse from gaining joint legal or residential custody. The court will likely look at the situation on a case-by-case basis and take into account the needs of the children, the ability of each parent to care for them, and other factors.
Despite the many issues that divorcing spouses must work through, finding peace in a one-parent household can be difficult and confusing. As such, it is important to establish a support system with friends and family members that can provide support and assistance in the wake of a pending separation.
If your spouse has left you for a period of time, it is a good idea to consult with an experienced attorney about your rights to spousal support, or alimony. It is important to note that, if you choose to pursue abandonment by spouse as a grounds for divorce, you will have to wait through a defined period of time (typically one year) before you can receive any benefits from your claim.
A spouse's abandonment by spouse can leave the other spouse with an unmanageable amount of stress. This is especially true when children are involved. In these situations, the abandoned spouse may have to take on multiple roles of financial provider and parent to provide their family with what it needs. In addition, the potential of the leaving spouse returning at any time can disrupt any semblance of stability or routine that has been built up in their absence.
In a marital situation involving abandonment by spouse, the burden of proof lies with the person claiming that their spouse has renounced their marriage through an act of desertion and/or non-cohabitation. The act of desertion consists of one spouse leaving the marriage without consent or justification while the act of non-cohabitation consists of the refusal to have sexual relations. These acts must occur for at least a year for a spouse to be guilty of abandonment by spouse in New York.
The physical act of abandonment by spouse is often the most obvious form. However, it can also be implied from statements made by the leaving spouse, documentation that proves the intention to separate (such as emails or text messages), and actions that demonstrate a clear intent to separate, such as packing bags, moving belongings out of the home, or signing a lease for a new residence. The act of non-cohabitation can be proved by evidence such as a failure to engage in a romantic relationship or a clear intent not to have any sexual relation with the other spouse, whether this has occurred for less than a year.
New York law provides that a person who is abandoned can file for a divorce, even though they do not have a complaint for any of the four fault grounds for divorce. This type of divorce is called a judgment of separation and it does not automatically lead to a divorce, but it does allow spouses to pursue the same rights they would have if their case had been filed as a divorce.
Even if a couple does not divorce, an abandoned spouse can still seek spousal support from the other party through a case in a New York City family court. The court will determine a spousal support award by considering the parties' incomes and expenses.
The right to custody and visitation is not affected by the issue of abandonment by spouse, but this may be a factor in child support cases. If a child custody dispute arises, the courts will consider the best interests of the child or children and the impact that each parent has had on them. An abandoning parent's refusal to pay child support can also negatively impact their rights and responsibilities to a custody and visitation petition.
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