Defining the Scope of Marital Abandonment in New Jersey Divorce Cases

Abandonment or Desertion has Numerous Implications in a Divorce Situation, from the Initial Filing to Collateral Issues like Child Custody and Beyond.

Filing divorce papers in New Jersey requires the one seeking divorce to check the grounds for divorce in a complaint for marriage dissolution. The grounds for a no-fault divorce are irreconcilable differences, but the grounds for fault-based divorces are adultery, imprisonment, cruelty, chronic substance abuse, and other causes of a marriage breakdown attributable to one or both parties. One reason for divorce is desertion, which requires evidence, just like other fault-based divorce grounds.

Understanding Desertion/Abandonment for Divorce Filing Purposes in NJ

Desertion or abandonment, interchangeable terms, means a spouse has left the marriage without giving reasons or plans to return. However, desertion is the official term in divorce complaints. It is not the same as separating when one spouse leaves but does not cut ties without reason. A separation may be consensual or non-consensual, but it is not an abandonment when the spouse participates in the divorce proceedings or provides support by the dictates of the law.

Implications of Filing for Divorce Based on Desertion in New Jersey

When a spouse leaves town, lives somewhere else, and either states they have left permanently or does not return for long enough to call it abandonment, the other spouse may file for divorce. The other spouse’s desertion is the reason for the marital breakdown, and the fault belongs to the deserting party. When a family court judge believes the evidence of desertion, they can order child support, alimony, and whatever else the deserted spouse may legally request. The deserting spouse has little say in court.

Constructive Abandonment as a Justifiable Reason to Leave the Home

Though a spouse who leaves the marital home without returning for unjustifiable reasons is a clear case of abandonment, some cases are not as clear. For example, constructive abandonment occurs when one spouse forces or causes the other to leave. So, the person who leaves home to avoid continued physical or emotional abuse has a justifiable reason to desert the marriage, and the other spouse is at fault for the marital separation. Any conditions that make life in the marriage unbearable are potential grounds for justifiable desertion, such as continually denying a spouse’s request for sex.

What are the Options if One of the Spouses is Locked Out of the House?

Another justifiable reason for leaving is being locked or kicked out. When one spouse changes the locks so the other cannot enter the marital home or kicks the other out, the out spouse has a justifiable abandonment and reason for divorce. However, the spouse must wait a year. The last type of abandonment is a crime. When spouses with financial dependents leave and cut off support, they may face criminal abandonment charges.

Consequences of Willful Nonsupport of Family Dependents in New Jersey

It is a fourth-degree crime in New Jersey to willfully fail to support a spouse, child, or other dependent (N.J.S.A. 2C:24-5). Parents must feed, shelter, clothe, and medically care for their children by law. Willfully leaving children and a spouse without financial support or caregiving are grounds for a divorce and for judges to rule against the deserter in support and asset division matters. Willful means the spouse has the means but not the will to provide financial support.

Proving Abandonment for Divorce in New Jersey

As is apparent from the types of abandonment under New Jersey law, proof of abandonment is proof of fault in divorce. Proving abandonment requires evidence that at least one year passed before filing for divorce in which the deserting spouse has not lived in the marital home. So, when one spouse leaves for six months but returns to life as a married couple for a month, the 12 months begin after the spouse goes again. The second element to prove is the separation is non-consensual.

The third element is cause-related. When the spouse left behind did not cause the other to go by coercion or threat, the abandoned spouse may prove the desertion was the other’s fault. And finally, the absence of financial support for the deserted spouse or the couple’s children is proof of abandonment. When a spouse moves out without the other’s consent but pays alimony and child support, the out spouse has not abandoned their family.

Dealing With the Complexities of Child Custody in Cases of Abandonment

When abandonment is evident, a judge may consider the abandonment when deciding on child custody. Though the best interest of a child is the principal guiding factor for judges deciding custody issues, a parent who left their children without reason or financial support may appear unfit to protect and promote the welfare of a child. A judge could find a parent irresponsible and, therefore, inappropriate to have legal or physical custody of a child. For example, the judge must consider whether the child will get to school, return to the other parent, or receive adequate medical care with a parent who walked away from their child for a year, disregarding their needs and welfare.

Managing Alimony in the Context of Marital Desertion

Each situation is unique and judges decide on the facts of each case. For example, alimony payments rest on the supported spouse’s financial need and the supporting spouse’s ability to pay. Abandonment may play a role in determining alimony, but primarily when the abandonment caused the other spouse economic harm. Many factors go into the alimony calculation, including the lifestyle maintained during the marriage, earning capability, and potential, among other factors.

Does Abandonment Have an Impact on Property Division in NJ?

A judge may also consider abandonment in property division when the parties do not agree to a property division in their marital settlement agreement. Though a judge assigns property to each spouse on equitable principles, the costs of abandonment, such as financial losses and psychological trauma causing the abandoned spouse’s need for therapy, may cause a judge to award the abandoned spouse more assets to address the abandonment effects. Once again, however, family law decisions are fact-driven, so each case differs in weighing the entire situation. And a spouse does not give up their marital interests in property by leaving the marital residence.

Dealing With Abandonment Has Different Aspects That Require an Expert Divorce Lawyer. Contact Our Little Falls Office to Explore Your Options

Deciding to divorce is difficult under most circumstances. Concerns about when or how to file, your rights, and what will happen to your children are pressingly real. The advice of an experienced family law attorney can go a long way to allay fears and arm you with information. Deciding to file a divorce on fault grounds requires careful consideration. No doubt, proving fault takes longer and costs more. So, your attorney may suggest a no-fault divorce to save time and money. However, custody, property, and alimony decisions may favor proving abandonment, especially when the facts are undeniable.

On the other hand, you may consider a no-fault divorce when you have a muddy set of facts about whether a spouse abandoned you or you drove them out by your actions or inactions. For example, refusing to move to another city with more job opportunities for your spouse may be a constructive abandonment on your part. Discussing what is best for your circumstances with a family law attorney is your strongest option in strategizing your divorce. Contact The Montanari Group for immediate assistance in a free consultation at (973) 233-4396 or fill out our online contact form. We assist clients with grounds for divorce, and many other related family law matters throughout New Jersey, including in Wyckoff, Woodland Park, Millburn, Wayne, Kearny, Hackensack, Passaic, Hudson, Essex, and Bergen County.