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Everything You Need to Know About Abandonment and Desertion in Divorce


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Most people do not imagine how their lives could take a wrong turn after marriage. After all, the whole reason for marrying is because they are in love. But things are not always rosy after marriage, resulting in some spouses walking away from their marriage.

When one spouse leaves a relationship or a family home and fails to return, the remaining spouse can file for divorce on abandonment or desertion grounds.

What Qualifies As Abandonment?

The definition of abandonment and desertion can vary by state. It generally refers to the action of one spouse leaving a home or relationship either financially and/or physically without warning or communication. If you are looking to file for divorce on the grounds of abandonment or desertion, you may want to refer to your state’s definition of the terms to establish if you have valid grounds.

A spouse may choose to leave for several reasons—for example, if they get involved in another romantic relationship, or it becomes intolerable to live with the other spouse. “In some instances, a spouse will walk away to create a reason for a divorce if they can’t get it any other way,” said Attorney Tammy Begun of Capital Family & Divorce Law Group.

Actual and Constructive Abandonment

There are two main types of abandonment; actual physical abandonment and constructive abandonment. actual physical abandonment can occur when a spouse abandons their home and fails to meet the financial obligations owed to their family.

A party can also choose to leave a relationship because the other party makes life unbearable, leaving constructive desertion as their only reasonable option. Desertion that occurs under these circumstances is referred to as constructive abandonment.

If you are filing for a divorce on the grounds of constructive abandonment or desertion, you will need to prove that there was a “just cause” for leaving the marriage. This can include, but not limited to, infidelity, domestic abuse, failure to meet financial obligations, or withholding sex.

Fault or No-Fault Divorce

If you and your estranged spouse choose to separate amicably, you can choose for a no-fault divorce where the question of abandonment will not apply. Under a no-fault approach, the filing spouse may only needs to demonstrate irreconcilable differences or that they amicably parted ways or that they have been physically separate and apart without cohabitation or under the same roof for a 12 month period.

If your state laws allow the option of filing for fault divorce, you should consult your attorney to be advised of the easiest ways to accomplish this divorce. But it is important to note that fault divorces are generally more time-consuming, emotional, and expensive, which is why many divorcing couples opt for the no-fault divorce. Some partners choose to go the fault divorce route to punish their partners for their misconduct.

What Doesn’t Qualify As an Abandonment?

Some situations may appear as abandonment, but they are not, such as if a person is suffering from amnesia, suffered an injury, or is in a coma. There are also other exemptions to abandonment, such as when a spouse leaves because of an imminent threat of danger, child abuse, domestic abuse, or similar situations.

To leave a relationship under these circumstances without being found to have abandoned your spouse, you may want to consider getting a restraining order or a protection order issued by law enforcement.

If the divorcing couple has children, abandonment may negatively affect the abandoning spouse’s chances of getting custody of their children. This is especially true if the party left the children behind or failed to pay for their support during the time in question.

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