To Leave or Not to Leave? That is the Question

What are the consequences of leaving the home prior to divorce?

As a divorce lawyer and family law attorney on Long Island, one common question I am asked by potential matrimonial clients is: Can I leave the house?  While a number of issues come into play, the answer largely depends on two (2) issues

1. Grounds for divorce
2. Payment of support and/or carrying charges

Grounds for Divorce in New York

In New York, there are seven (7) grounds for divorce:

1. Cruel and inhuman treatment
2. Abandonment
3. Imprisonment
4. Adultery
5. Living separate and apart pursuant to a separation judgment or decree
6. Living separate and apart pursuant to a separation agreement
7. Irretrievable breakdown in the marital relationship for a period of at least six months (commonly referred to as “no-fault divorce”).

Abandonment

The question, “Can I leave the house?” involves an Abandonment issue. Abandonment must be for at least one (1) year and typically occurs in one of three (3) ways:

1. A spouse actually leaves the marital home and does not return
2. A spouse locks the other spouse out of the marital home
3. A spouse refuses to have sexual relations with the other spouse.

Time & Timing of Leaving is Important

Accordingly, if the spouse were to leave the marital home, they would be deemed to be “abandoning” the other spouse if their absence from the home were to last for at least one or more years.  Of course, the easiest way to avoid creating a ground for divorce of abandonment when leaving the home is to simultaneously file for divorce. In New York, the ground for divorce must have occurred prior to filing for divorce, therefore, if you leave the home and file simultaneously for let’s say, a “no-fault” divorce, then, you will not be deemed to have “abandoned” the other spouse.

Leaving has Support Ramifications

However, if you leave the marital home and you are the “monied” spouse, that is, the spouse who earns a higher income, then, you may become responsible for support to your spouse, children, or both, as well as for the carrying charges of the home, such as the mortgage, taxes, insurance, or rent, etc. If you are the less affluent spouse, then, upon leaving, you may actually be entitled to support from the monied spouse.

Every Case is Unique; Seek Attorney Counsel

The answer to the “Can I leave the house?” question is never as simple as yes or no. Each case is different and carries its own implications. Sometimes, the spouse can simply leave; other times, the spouse is better off staying in the home. To protect your interests, if you are contemplating leaving your spouse you need to meet with a qualified divorce attorney before taking any actions such as leaving the home.

The attorneys at Hornberger Verbitsky, P.C. are here to answer your questions at any time. For a free private consultation about your needs, contact the experienced attorneys at Robert E. Hornberger, PC at 631-923-1910 or fill out the form on this page and we’ll get right back to you.