In some cases, people just walk out of their marriage and don't come back. Can the spouse who was left behind file for divorce on the grounds of spousal abandonment? States that allow fault-based divorces often have spousal abandonment. However, there's more to abandonment than just getting up and leaving.
A lot of states do have laws that allow people to file for divorce on the grounds that their spouses have abandoned them over a period of time, and the threshold for this differs from state to state. In Texas, for example, the threshold time is 1 year.
What is abandonment or desertion?
There's a slight difference between spousal abandonment and desertion. Abandonment is when a spouse leaves and is absent for a certain period of time. Desertion is more specific, in that it entails a decision or the intent to end the marriage and in most cases, show no intent to return.
Furthermore, a person has to be able to prove that a person left without the consent of his/her spouse. Also, divorce courts will require proof that the spouse who left was not provoked to leave the home. For example, going out of your way to make home life extra-miserable for your spouse in order to provoke him/her to leave may not stand up in court as desertion. An individual may have legal justification for departing if his/her spouse did something so wrongful that it constitutes divorce. For example, one's wife may have legal justification to leave if she finds out her husband has been keeping up an illicit affair.
That being said, desertion and abandonment cannot be established in cases of separation when couples agree to live apart because the marriage is not working.
It would also not be considered as desertion and abandonment if couples occasionally meet to talk or have sex.
However, desertion and abandonment doesn't just pertain to physical absence but could also refer to one's failure to provide financial support to the family (especially if one is the breadwinner) and a spouse's explicit refusal to have sexual relations with his/her spouse for no good reason.
On the other hand, unintentional abandonment cannot constitute divorce. For example, if a soldier goes MIA while on serving and fails to contact his/her spouse in the process, this cannot be constituted as abandonment. Typically, a person must be missing or inexplicably absent (disappeared for no apparent reason) for seven years before he/she is presumed dead. If within the duration of seven years, the person turns up, then his/her marriage will still remain intact under law. The exception is if reasonable effort has already been exerted and evidence of probable death can be presented; some courts may grant a dissolution of marriage in such cases.
During court hearings, desertion would play a big part when deciding who gets custody of the children.
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