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What Constitutes Spousal or Marital Abandonment?
The decision of whether to leave the family home upon separation is a weighty one. The decision should not be taken lightly, nor should consideration as to how to time a move. Done poorly, your decision to leave could be interpreted as abandonment.
Not every situation that occurs during a divorce is a rational, well-planned, and carefully-deliberated product of evaluation. In situations of domestic violence or fighting in front of young children, parties should separate as soon as possible to protect the emotional well-being of children and safeguard against harm to one another, property, and parenting rights. In less volatile situations, parties facing separation should give due consideration to several factors before deciding to vacate the home. Factors include financial considerations, parental considerations, and abandonment. Discussion of the first two types of considerations is beyond the scope of this article; however, marital abandonment is presented.
Leaving the Marital Home
If a divorcing spouse vacates the marital home before or during a divorce, that spouse should take measures to safeguard herself, such that her conduct will not later be deemed abandonment. A charge of abandonment can harm parental rights in child custody battles. Parental rights can be detrimentally impacted because family courts look at a parent's absence from the family home when they have to divide parental responsibilities and parenting time. Courts also examine a party's inability or unwillingness to provide child support for minor kids.
As a result, if a party leaves the family home, it is prudent to continue to provide child support to minor children without any lapse and short of any court order. A party leaving the family home should seek as much parenting time with the kids as possible and remain an active and vital presence in the lives of minor children to ensure the best outcome in future custody contests. It is not difficult to envision challenges facing a parent absent from the family home when that parent moves out and participates in very sparse parenting time with minor children, but later petitions the court for a greater award of parenting time. The family court is going to want to preserve the status quo, rather than disturb what is familiar to the children just because it is requested by one parent.
For these reasons, the decision to move out of the family home before or during a divorce must be thoroughly evaluated, well-planned, and carefully timed so the multitude of issues presented by the decisions are logically, thoroughly, and appropriately addressed. It is prudent to consult with counsel prior to initiating any departure from the marital home. The decision, if made, must be an informed one. The goal is to reduce negative impacts and ramifications of the legal and financial consequences of separation and divorce upon the family.