04 Jan Setting the Record Straight on Abandonment
In 2010, when No Fault Divorce legislation was enacted in New York State, it changed everything. Divorce became much easier and it took away the need for a lengthy separation period. This meant that a married individual no longer needed to satisfy a complicated set of criteria or circumstances in order to seek a marital change. Overnight, the process of divorce essentially became faster, cheaper, more efficient and less contentious for families and children. New York was the very last state to adopt No Fault Divorce, and in doing so, did away with individuals having to prove one of six factors: 1) cruel and inhuman treatment, or 2) imprisonment (for a period of three years or more), 3) adultery, 4) husband and wife lived apart for a period of one year or more (under legal court issued separation agreement), 5) living apart for one year of more under a notarized separation agreement, or 6) abandonment (for a period of one or more years). Today, the vast majority of divorces in New York State are filed for under the No Fault Divorce clause section of the law.
Even though abandonment is technically still on the books, it is rarely utilized and even then, is very difficult to prove as grounds for divorce or child custody. There still remains much confusion regarding the topic and what must be established for an abandonment case to be heard. Let’s explore this a bit further including an example of what exactly has to happen for abandonment to be considered.
The four components of abandonment that must all be proven just to plea a case, are as follows: 1) One party has left voluntary, 2) There is no intent by the party that left to resume cohabitating (no plan to ever come back), 3) The other spouse didn’t consent to them leaving (other party didn’t want them to go); 4) no justification for them leaving (they just packed up and disappeared without reason). So not only do these difficult to prove conditions all have to be met, but the party that left has to be gone for at least one full, consecutive year.
Often, one party may choose to temporarily move out, rent an apartment down the street or move in with friends or family to keep the peace. In fact, it is common for a judgement to instruct one party to leave the home for the benefit of the children, as it pertains to arguing, fighting or other potentially damaging behaviors. This almost certainly does not represent abandonment, and again, would likely have no bearing on child custody, division of assets, home equity or rights to personal property. (Note that Abandonment of Children is a completely different statute and is predicated on having no contact or no attempt to contact children for six months.) The following hypothetical example illustrates just how difficult it is to meet today’s abandonment plea requirements:
John and Susie are married and live together in Western New York with two teenage children and a home in the suburbs. They have been married for 10 years with relationship free of trouble, drama, substance abuse, extra marital affairs, etc. Everything has been seemingly great with no problems at all (1 – no justification). Susie has suddenly decided to move to Alaska, leaves the marital home, packs her bags, buys a house in Anchorage, gets a job, etc. (2- voluntary separation with 3 – no intent to return). John is shocked and begs her to return (4 – no consent). Eighteen months go by (more than the one year minimum). This would constitute abandonment because all four requirements are met. If even just one of them was not satisfied, it would not be considered abandonment. Even if it was determined to be abandonment, Susie might still be entitled to joint custody and equitable distribution of marital assets.
Many people still misunderstand abandonment and are fearful that they might be jeopardizing their rights even if they decide to leave their marital home. If there was one main take away here, it would be to not stay under a roof where you are physically in danger, emotionally being abused, financially being taken advantage of or are just incredibly unhappy. Don’t let the idea of abandonment or the threat of abandonment keep you in an unsafe environment.
Sarah Wesley is a partner with Wesley, Clark and Peshkin, one of New York State’s most experienced family law firms – exclusively focusing on divorce litigation, collaborative law and mediation.