While some couples wait to separate until the execution of a separation and property settlement agreement or the issuance of a court order, sometimes one party makes the unilateral decision to end the marriage and move out. Often termed "abandonment" in many jurisdictions, this type of behaviour affects many aspects of the subsequent divorce case. It does not, however, affect the abandoning party's interest in a house that constitutes marital property.
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Marital Property and Debt Division In General
All states divide marital property and debt under equitable distribution or community property schemes. Courts have to divide marital property and debt equally in community property states. In ED states, they apply a presumption that an equal division is equitable, or fair, but allow for an unequal distribution in the presence of certain statutory factors. In both ED and community property states, property division is based upon the theory that everything a couple acquires during a marriage or using marital efforts is property of the union, not of the individual parties.
The Role of Fault In Property Division Cases
The majority of states generally hold fault to be irrelevant in property division cases. In the minority of jurisdictions that allow for a consideration of fault, it must rise to a particularly conscience-shocking or outrageous level, such as serious spousal abuse or cruelty; abandonment is unlikely to qualify as outrageous misconduct. Majority-rule states sometimes allow for a consideration of fault that is economic in nature, such as wasting the marital estate on a gambling or drug addiction. Unjustifiably moving out of the former marital residence is not the type of fault that will affect a party's interest in marital property.
Factors Affecting the Distribution of the Home
Although the husband's abandonment of the home is unlikely to affect his rights to it, it may be one factor the family court uses in deciding who gets temporary possession of the residence pending trial and who receives a distribution of the home in the community property or ED trial. The husband's monetary interest in the property will then be balanced out in the form of other assets or reduced responsibility for marital debt.
Other Issues That Husband's Abandonment Affects
The husband's abandonment of the home will have a greater effect upon alimony issues. As fault is a consideration in alimony cases even in states that have no-fault divorce, moving out of the former marital residence without justification or excuse can expose the husband to a greater risk of having to pay alimony than if he were to stay put and seek a court's permission to leave. In the event the husband is the dependent spouse, abandonment may bar or at least seriously endanger his own alimony claim. Furthermore, if the couple has children, moving out of the residence without the children operates as a silent admission that the other party is fit to have custody; if she were an unfit parent, the court will reason, why would the husband move out and leave the children with her?
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