2 Things You Need to Know Before Filing for a Divorce

Updated 03/28/19
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The legal definition of abandonment is, “The act by which a person abandons and forsakes, without justification, a condition of public, social, or family life, renouncing its responsibilities and evading its duties.” However, if you're going through a divorce or thinking of leaving your spouse, a textbook definition couldn't possibly explain exactly what you're going through.

While leaving a spouse is never an easy decision, there are a few things to note before you start filing the paperwork, especially if your partner is sick or there are children in the picture, as both of these factors play a large role in the two major types of marital abandonment. It also may be helpful to understand these types of abandonment if you think your spouse may leave you, whether you are sick or have kids. Keep reading to arm yourself with information and find out exactly what marital abandonment really is and how it can affect your divorce.

Criminal Abandonment

One major type of marital abandonment is criminal abandonment. This occurs when one person stops providing for the care, protection, or support for their spouse who has health problems or children who are minors without “just cause.”

For example, if your spouse suffers from cancer and you no longer feel capable of being their caretaker, the court will not recognize your desire to leave someone who is dependent upon you as grounds for a divorce. However, you can still be granted one because no-fault divorce laws are in place to make sure anyone who wants a divorce is able to get a one.

There is a catch, though. While you are free to walk away from a sick spouse, the courts will see your partner as financially dependent upon you. Because of this, you'll still be financially responsible for helping maintain their medical care.

Additionally, according to the law, if you have children, you have a legal, financial responsibility to care for and provide for them, even if you leave your spouse. By the same token, if your spouse leaves you and you have children together, they are still responsible for financially supporting your kids.

Constructive Abandonment

This type of abandonment occurs if you are able to prove in a court that your spouse makes life unbearable and that your only option was to leave the marriage. In other words, you would need to have “just cause” to leave the marriage for reasons like domestic abuse, infidelity, withholding sex, or refusing financial support.

Although filing for divorce is easier than ever before (in most cases), proving marital abandonment in court can be a challenge. Additionally, since you can get a divorce with or without your spouse's permission, filing on the grounds of abandonment doesn't hold much legal water these days. 

In other words, the courts can't force you or your spouse to stay in a marriage. The one who abandons the marriage will not be forced to return but they will be held financially responsible for things such as child support, spousal support, and property division via a divorce court order.

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