Abandonment and Desertion in Divorce

Every day unhappy people facing divorce all over the world make a decision to stay in the house with theirspouse, even though they know both of them would be better off if theyseparated. They stay for any number of reasons — to be close to their children,fear of any change, not enough cash to afford anotherplace. Lots of them stay because they’re afraid they’ll be accused of abandonment– of desertion. In some cases, their fears are justified. Usually they’renot.

In my experience, abandonmentand desertion are vastly overrated as issues in divorce. For starters,in most states, the proving of fault has become less significant generally.In most states, incompatibility is the grounds for divorce in the overwhelmingmajority of cases, and the judge is interested only reluctantly, if atall, in the question of who caused it. Secondly, in most states, a showingof abandonment requires not only that the spouse has left but also thatthe spouse has tried to keep his or her whereabouts a secret and/or hasfailed to support the family.

If you’re leaving homeand are worried about abandonment, I can’t give you a blanket authorization,because the laws in each state really do vary as they apply to abandonment.What I can tell you is that, even if you have a problem, that problem willbe far less severe if you can show that you’ve made sure your spouse andyour children know how to reach you and that you’ve continued to providenecessary support for your family.

This doesn’t mean,of course, that leaving is the right decision. The departure of eitherparent is nearly always brutally painful for children and spouses alike.Often the right decision is to stay and continue caring for a family inthe face of difficulty. My point is that the legal concern aboutabandonment and desertion is often overblown.