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What Is Marital Abandonment on Long Island, NY?

by | Dec 19, 2023 | Divorce Long Island, NY

Learning that your spouse wants to end your marriage can be a low blow, but it can be even more challenging if your spouse decides to leave the marriage without even telling you anything first. While this can be devastating to the remaining spouse, it is certainly further complicated if you share children together.

Marital abandonment can take many forms: physical, economic, constructing or criminal. Below, we go over the basics of marital abandonment and how our veteran Long Island, NY divorce lawyers can help you navigate this emotionally draining situation.

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The Definition of Marital Abandonment

Physical marital abandonment occurs when one spouse leaves the other and their familial duties. They may or may not give you notice that they are leaving. However, they never file a divorce petition and make no attempt to resolve matters relating to asset division, alimony, or child custody.

Economic abandonment occurs when one spouse purposefully stops contributing to the financial support to the household.

Constructive abandonment is often referred to as emotional abandonment because it occurs when one spouse “checks out” of the marriage and is no longer emotionally involved. This includes refusing to be involved in sexual relations with their spouse.

Criminal abandonment is when one spouse is critically ill or becomes incapacitated and is abandoned by the other spouse. This is particularly the case when the incapacitated spouse has been the lesser earning spouse.

It can also apply when a spouse abandons children and fails to financially provide for them as required by New York State law. In these cases, abandonment may result in criminal charges for the deserting spouse. Usually, this is a misdemeanor and rarely results in jail time. However, the deserting spouse may be ordered to pay the support that they owe as well as a fine for criminal abandonment.

Spouses are permitted to leave their partners when just cause exists. This includes extenuating circumstances like child abuse and domestic violence, adultery, or criminal activity. However, if you are a deserting spouse with just cause, it’s important that you go ahead and file for divorce against your spouse as the petitioner. This indicates to the courts that you are not abandoning your familial responsibilities but rather acting to protect yourself and any children who may be involved.

The Consequences of Marital Abandonment

There are many consequences of marital abandonment or desertion. First and foremost, the abandoned spouse is at an extreme disadvantage when they are unable to access critical resources that a divorce would provide them. The deserting spouse also forfeits their right to their fair share of marital property as well as custody and visitation of their children, if they have them.

If the deserting spouse does decide to later divorce, it’s possible that their abandonment may be used against them to reduce their divorce settlement award or restrict visitation time. It’s crucial that parents who want to maintain a relationship with their children at any point in the future refrain from engaging in behavior that could be construed as abandonment.

How to Prove Marital Abandonment

If your spouse has abandoned you and you want to take court action to formally dissolve your marriage, you will need to prove several elements of marital abandonment, including:

  • Your spouse left the home with the intent to leave your marriage for an indefinite period of time
  • Your spouse has been gone from the marital home for 12 months or more
  • Your spouse did not have just cause to abandon you
  • You did not agree with your spouse leaving the home
  • You don’t have any hope of reconciling with your spouse, either because they have told you or they have become impossible to contact and you don’t know where they are
  • Your cohabitation with your spouse has ended as a result of their leaving the home

There are several things you can do to illustrate to the court that your spouse has indeed abandoned you. The more evidence you have, the stronger your case will naturally be.

For example, photos of your spouse’s empty closet on the day they left would suggest that they packed all of their things without any plan to return. You can use bank statements to show where your spouse has stopped using a joint bank account or witness testimonies that saw your spouse leaving with suitcases.

When to Contact an Experienced Divorce Attorney if You Are the Victim of Marital Abandonment

If you have been abandoned by your spouse and you want to end your marriage, don’t hesitate to get qualified legal help as soon as possible. Your future security depends on the quality of your legal representation now. Contact the experienced Long Island, NY divorce lawyers at Hornberger Verbitsky, P.C. at 631-923-1910 or fill out our quick online form and we will call you right back.

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About the Author

Robert E. Hornberger, Esq., Founding Partner, Hornberger Verbitsky, P.C.

  • Over 20 years practicing matrimonial law
  • Over 1,000 cases successfully resolved
  • Founder and Partner of Hornberger Verbitsky, P.C.
  • Experienced and compassionate Long Island Divorce Attorney, Family Law Attorney, and Divorce Mediator
  • Licensed to practice law in the State of New York
  • New York State Bar Association member
  • Nassau County Bar Association member
  • Suffolk County Bar Association member
  • “Super Lawyer” Metro Rising Star
  • Nominated Best of Long Island Divorce Attorney four consecutive years
  • Alternative Dispute Resolution Committee Contributor
  • Collaborative Law Association of New York – Former Director
  • Martindale Hubbell Distinguished Designation
  • America’s Most Honored Professionals – Top 5%
  • Lead Counsel Rated – Divorce Law
  • American Institute of Family Law Attorneys 10 Best
  • International Academy of Collaborative Professionals
  • Graduate of Hofstra University School of Law
  • Double Bachelor’s degrees in Philosophy, Politics & Law and History from SUNY Binghamton University
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Melissa Rappa
18:09 08 Feb 24
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Paul Carmichael
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