Abandonment, when used in family law proceedings, refers to the act of one spouse deserting the other (with or without children) without consent or justifiable cause, and with the intent of never returning. With the exception of no-fault states, abandonment, and in some cases desertion, are considered legal grounds for a divorce. Certain protocols must be followed to use abandonment in the process of filing for divorce.
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Retain a lawyer immediately. Each state has a specified amount of time that must pass before "abandonment" is acknowledged. Your lawyer will know the specific time frame. Paperwork cannot be filed under these grounds until this time period has passed.
Prepare an affidavit with all financial data and marital assets, including community property. This list will be needed in the court proceedings.
Meet with your spouse to draw up a mutually agreeable marital separation agreement, if possible. This step will reduce costs and time spent in court considerably in divorce proceedings. In abandonment cases, if the spouse cannot be reached or a mutual agreement cannot be made, the judge may decide the final division of all debts and assets.
Consult with your attorney, and fill out all divorce paperwork required by law in your state. You or your attorney can file these papers with the courts. A fee will usually be required but can be waived in extenuating circumstances.
Serve the papers to your spouse, or if you have an attorney, it will be arranged for you. Each state has a minimum number of days before this act must occur. The sheriff's department is also utilised to serve papers to the opposing spouse. Once served, a proof of service will have to be filed with the court stating by whom it was served, when, and where. The defendant spouse has a limit on the number of days by which the documents must be signed and returned (uncontested divorce) or contested, varying by state.
If contested, the divorce will now require a court date for trial. If uncontested, the divorce is accepted by the court with the judge's final decision, and the divorce is granted. A specified amount of time (depending on state law) must pass after the date of filing before the divorce is legally finalised, resulting in a certificate of divorce or a proper dissolution of marriage.
Tips and warnings
- All no-fault states, like California, do not consider abandonment as grounds for divorce; "irreconcilable differences" as the legal grounds for divorce suffices. Abandonment, however, may be considered in determining alimony, custody, and other legal matters.
- Failure to support a spouse financially, or even refusal to engage in sexual intercourse that is deemed to be part of the marriage contract, can be determined to be "constructive abandonment" in states like New York.
- Every state has family laws that can vary greatly. Check with your local family law court or attorney for state-specific information.
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