Marital Abandonment

In law, the term “abandonment” may be used in a variety of legal issues, from contract law to real estate law, referring to the giving up or renunciation of an interest, privilege, possession, or right, with the intent of never reclaiming it. As the term applies to matters of Family Law, an individual may abandon a marriage, spouse, child, or property. While abandonment of a marriage or marital property is a civil matter to be dealt with in family court, abandonment of a child may also be a criminal offense for which the individual may face criminal charges. To explore this concept, consider the following marital abandonment definition.

Definition of Abandonment


  1. The giving up or withdrawal of support from something or someone
  2. The act of leaving or deserting a person or property


1325-1375        Middle French abandoner

Walking Away and Marital Abandonment

Marital abandonment refers to a situation in which one spouse severs ties with the family, forsaking his or her responsibilities and duties to the family. Simply moving out of the family home in an attempt to create a temporary or permanent separation is not considered abandonment. The difference is often seen in the person’s refusal to provide necessary support, whether financial or otherwise, with no intention to return, or to fulfill those responsibilities. In most states, the remaining spouse has no financial responsibility to the abandoning spouse.

In an at-fault divorce state, abandonment may be considered grounds for divorce. In these states, the spouse claiming abandonment must prove certain things to the court. For example, Jennifer files for divorce claiming that her husband, James, abandoned her just over a year ago. Jennifer would need to show that the couple had not agreed that James would leave, that she didn’t cause James’ departure, and that he hadn’t paid any support during his absence.

Constructive Abandonment

Marital abandonment does not necessarily refer to a spouse leaving the home, but may be accomplished when one spouse forces the other to leave through bad behavior. If one spouse intentionally makes life insufferable for the other, giving the other spouse no choice but to leave, he or she has committed constructive abandonment. Many acts or refusals may give legal grounds for a victim-spouse to leave the marriage and home. These may include:

  • Physical, emotional, or mental cruelty
  • Physical abuse
  • Infidelity
  • Withholding sex
  • Refusing to provide financial support

Criminal Abandonment

Suddenly refusing to provide care, support, and protection for minor children, or for a spouse who has serious health problems, is considered criminal abandonment. The law does not require people to continue living in a relationship, and anyone has the right to walk away from a sick spouse, but there is a price. It is likely the court would consider such an abandoned spouse to be financially dependent on the leaving spouse, and issue an order for continued financial responsibility and care. Abandoning a minor child is, in many cases, considered a crime as well, even if the child has not suffered physical harm as a result of being abandoned.

Property Division in Marital Abandonment

In most states, the fact that one spouse abandoned the marriage is not considered for the purpose of dividing marital assets. However, if one party leaves the residence without making an arrangement as to how the couple will pay the mortgage and other financial obligations, the remaining spouse may successfully argue to the court that the leaving party abandoned the marriage, and neglected the marital property and obligations. If the remaining spouse continued to pay the mortgage and other bills with no help from the abandoning spouse, it could create a very persuasive argument that the abandoning spouse should not be entitled to any equity that has accrued on the property, or possibly to the property itself.

In addition, most states’ statutes make a provision for either spouse who purposely wastes, neglects, destroys, or devalues the marital property, which may be taken into account by the family court judge when dividing the marital assets.

Protecting Oneself When Abandoned by a Spouse

When a couple divorces, each party has certain financial rights, which include the right to request alimony, and the right to an equitable distribution of the marital property. The process of enforcing these rights begins with the filing of a Summons and Complaint for Divorce.

In a circumstance in which a spouse who has been abandoned does not wish to file for divorce, the abandoned spouse may still request spousal support from the other party. Spousal support in an abandonment case with no divorce filed must be requested by the abandoned spouse through the local family court.

In the event an abandoned spouse has children with the other party, he or she may request a custody order from the court, establishing the children’s custodial parent. The abandoned spouse may also seek an order for child support from the other party. The specific process to file for custody and child support varies by jurisdiction. Contacting the local family court, or consulting with a family law attorney, is the best way to discover the correct process.

Related Legal Terms and Issues

  • Financial Responsibility – The obligation of a parent to financially provide for the needs of a child.
  • Marital Property – The property and money acquired by a couple during the course of their marriage.
  • Custodial Parent – A parent given physical and/or legal custody of a child by order of the court.