Published on: January 18, 2024

What are Abandoned Spouse Rights in New York City?

An abandoned spouse refers to a person who has been left by their spouse without warning, reason, or communication for a significant length of time. In New York, abandonment might include a physical separation or a complete withdrawal from the marriage emotionally and financially. However, even if a spouse has deserted their partner, they still have legal responsibilities to their lawfully married spouse. An abandoned spouse is still entitled to rights they would be afforded if their spouse had not left them.

Working with an experienced Manhattan family law attorney can help in asserting these rights. Top-rated New York City family law attorney Juan Luciano has successfully assisted abandoned spouses and their families in New York in holding a deserting spouse accountable for abandonment. We can help you reclaim financial support, file for sole custody of your children,  or file for a fault-based divorce. We can also assist you in ensuring that your marital property is distributed fairly in the event of divorce. Contact us today at (212) 537-5859 to schedule a consultation.

In legal terms, abandonment is a situation where one spouse leaves the marital home without the consent, agreement, or communication of the other spouse. Abandonment may also refer to a situation where a spouse withdraws financial support or involvement – be it emotional or sexual – in the marriage. 

In New York, spousal abandonment is recognized as a fault-based ground for divorce under physical or constructive abandonment. It’s important to remember that legal separation is not the same as spousal abandonment. While a legal separation can be grounds for a divorce, a separation involves the mutual agreement of both spouses to live independently from one another. In an abandonment case, there is no element of consent and an abandoned spouse can be left vulnerable due to their spouse suddenly withdrawing financial and emotional support.

In a fault-based divorce, the criteria for abandonment can be stringent depending on the circumstances of the case. In New York, what constitutes abandonment is the unjustified and continuous separation of one spouse from the other, desertion in the marriage, and the refusal of sexual relations, for at least one year. To prove that the abandonment is unjustified, it must be shown that the abandonment was not the result of the deserted spouse’s consent or provocation.

Types of Marital Abandonment

Marital abandonment can take several forms as it can entail a physical or emotional withdrawal from the relationship or both. The main types of marital abandonment are:

  • Physical abandonment: This is the most common form of spousal abandonment, where one spouse physically leaves the marriage without any intention of returning to the relationship or providing for the other spouse’s needs, such as emotional or financial support.
  • Constructive abandonment: Constructive abandonment, also known as emotional abandonment, occurs when one spouse withdraws from the marriage emotionally or refuses to engage in sexual relations with the other spouse without valid justification. This type of abandonment may lead the affected spouse to file for a fault-based divorce, as it may impact their emotional well-being, mental health, and the stability of the marriage.
  • Economic abandonment: In this form of abandonment, a spouse intentionally withdraws financial support, either by refusing to contribute to household expenses or ceasing to provide for the other spouse’s or the family’s financial needs. Economic abandonment can detrimentally impact the family unit and may be considered in the distribution of marital assets and determination of spousal support during a divorce.
  • Criminal abandonment: Criminal abandonment involves a spouse leaving or refusing to provide care or support to their child or their ailing spouse. While a spouse has a legal right to leave, it may be argued that, by neglecting to provide support to an ill spouse, the abandoning spouse is causing the sick spouse financial hardship. The court can issue an order requiring the abandoning spouse to provide care and financial assistance. Abandoning a child can also have subsequent legal consequences regardless of whether the child was physically abused. Under NY law, both parents have a legal responsibility to look after a child’s well-being.

It is essential to understand the different types of marital abandonment, especially when dealing with a divorce or separation, as the nature of the abandonment may impact your settlement, support, and other associated legal matters.

Type of Marital Abandonment Description
Physical Abandonment One spouse physically leaves the marriage without any intention of returning, neglecting emotional and financial support.
Constructive Abandonment Emotional abandonment where a spouse withdraws emotionally or refuses sexual relations without valid justification, affecting the other spouse’s well-being and marriage stability.
Economic Abandonment A spouse intentionally withdraws financial support, impacting household expenses and family’s financial needs.
Criminal Abandonment Involves leaving or refusing to provide care or support to a child or ailing spouse, potentially causing financial hardship. Legal consequences can follow.

What Rights Does an Abandoned Spouse Have?

Legal rights and obligations remain valid in marriage until a divorce order is granted by the court, whether or not one spouse abandons the other for any length of time. The legal rights of an abandoned spouse upon divorce can include entitlements regarding maintenance, child custody, child support, and the equitable distribution of marital property.

Maintenance (Spousal Support)

An abandoned spouse has the right to apply for maintenance or spousal support. Spousal maintenance is a legal obligation for one spouse to contribute to the other spouse’s financial support. The purpose of maintenance is to minimize the financial disparity between spouses after a divorce.

Several factors determine the amount and duration of spousal maintenance, including the financial resources of both parties, employability, the standard of living during the marriage, age, and health of both spouses, among others.

It is important to note that even though a spouse has been abandoned, they may not be automatically entitled to maintenance. The court will consider the relevant factors and assess whether an award of financial support is appropriate based on the specific circumstances of the case. The court will also take into consideration if the abandonment was done to cause financial hardship for the abandoned spouse when determining spousal support in the divorce.

Child Custody and Visitation

Child custody and visitation rights are critical to consider concerning abandonment. It is important to remember that parenthood does not end because one spouse has left or abandoned the other spouse. Both parents have a legal obligation to financially and emotionally support their children and have equal rights to legal custody, which includes making decisions about the child’s education, healthcare, and upbringing. 

However, in marital abandonment cases where the abandoned spouse has physical custody of the child, the abandoned parent can file a petition for a custody order establishing their rights as the child’s sole custodial parent.

In a divorce, courts will often try to ensure that both parents remain involved in the child’s life by implementing a visitation schedule. Should the abandoning spouse return and show a desire to maintain a relationship with the child or children, the court can consider a petition for visitation but it will also factor in the child abandonment.

The duration of time to constitute grounds for spousal abandonment is 12 months or one year which is the same duration needed to prove parental neglect. An abandoned spouse can file a petition to terminate the parental rights of the deserting spouse if the deserting spouse failed to maintain contact with the child for 12 months or failed to plan for the future of the child. The abandoning parent’s parental rights can also be forfeited if they do not return for the child for 6 months, which constitutes legal abandonment of a child. 

Child Support

Regardless of the spouse’s abandonment, both parents are still legally responsible for financially supporting their children. In a divorce case, an abandoning spouse can be compelled to pay child support to provide their child the legal recourse to obtain financial support from their abandoning parent. 

Child support is calculated based on the income of both parents, the amount of time the child spends with each parent, and the specific needs of the child, such as education, healthcare, and extracurricular activities. In New York, the abandoning parent may be compelled to pay child support to the custodial parent to pay for the needs of the child.

Failure to pay child support can result in severe consequences for the abandoning parent, such as wage garnishment, license suspension, and even jail time. A parent can also be charged with a criminal offense such as the non-support of a child.

Equitable Distribution of Marital Property

The right of the abandoning spouse to the equitable distribution of marital property is retained even in a fault-based divorce. However, if the deserting spouse left with the intention of causing financial hardship or destroyed or took away marital property when they left, the abandoned spouse can be awarded a larger share of the marital property to account for the losses. 

An abandoned spouse has the right to protect their financial interests, which may include seeking a fair share of the marital property during a divorce or legal separation. If the abandoned spouse took up the deserting spouse’s financial obligations, the abandoned spouse can make an argument that the deserting spouse has forfeited their rights to equitable distribution of the marital property. 

In such special circumstances, it is crucial to consult with an attorney experienced in family law to ensure that the abandoned spouse’s rights are adequately represented during the property division process or any negotiations involved in the divorce.

Clarification on the Concept of Abandonment Post-2010 No-Fault Divorce Law

The concept of abandonment within divorce proceedings has undergone significant changes since New York adopted no-fault divorce laws in 2010. Under the old fault-based system, abandonment was a recognized ground for divorce, often demonstrated when one spouse left the marital home for a year or more. However, in the contemporary legal landscape, the necessity of proving abandonment—or any fault—has been eliminated for obtaining a divorce.

The shift to no-fault divorce means that couples can now dissolve their marriage citing an irretrievable breakdown of the relationship without the need to prove wrongdoing by either party. This change reflects a broader societal understanding that marriage can end due to irreconcilable differences, not necessarily because one spouse has abandoned the other.

Nevertheless, the act of leaving the marital home is not without consequences, especially in cases involving children. Departing the family residence can potentially compromise one’s position in custody disputes. Courts often favor stability for children, and moving out could be viewed as a disruption to their living situation. Consequently, it is crucial for a spouse considering such a move to strategize with legal counsel to minimize any negative impact on custody arrangements.

In matters of spousal maintenance, also known as alimony, moving out and establishing a separate residence can inadvertently affect financial obligations. The costs associated with maintaining two households could influence the calculations of alimony payments, potentially to the detriment of the spouse who has moved out.

Despite the term “abandonment” losing its legal necessity as grounds for divorce post-2010 in place of no-fault grounds, the implications of physically leaving the marital home remain significant. It is vital for any spouse contemplating this step to seek the advice of an attorney to navigate the potential legal and financial complexities that may arise.

Elements of Abandonment

To prove abandonment in New York, the following elements must be demonstrated: voluntary departure, the length of abandonment, and the lack of justification for the departure.

Demonstrating Voluntary Departure

The first step in proving abandonment in New York is to establish that the leaving spouse’s departure was voluntary. Voluntary departure refers to a scenario in which a spouse intentionally and consciously decides to leave the marital home without being forced or coerced by the other spouse or external circumstances.

To demonstrate voluntary departure, evidence must be presented that shows the leaving spouse’s intention to abandon the other spouse. This might include statements made by the leaving spouse indicating the intention to end the marriage, documentation (such as emails or text messages) revealing the intention to separate, or actions that suggest a clear and decisive intent to leave (like moving out of the marital home, taking belongings, or signing a lease on a new residence).

It is essential to note that if the departing spouse was forced out of the marital home due to abuse, threats, or other harmful behaviors by the other spouse, it may not be considered a voluntary departure, and abandonment may not be proven.

Proving Length of Abandonment

The next element to prove abandonment in New York is establishing the minimum length of time that the deserting spouse has been absent from the marital home. According to New York laws, the period of abandonment must last for at least one continuous year for the abandonment to be considered a valid fault-based ground for divorce.

To provide evidence of the length of abandonment, several documents and records may be presented, such as rental agreements or utility bills that show the deserting spouse has maintained a separate residence for the required period. Additionally, witness testimonies from friends or family members who can confirm the deserting spouse’s absence from the marital home can also help in proving the abandonment duration.

It is crucial to demonstrate that the abandonment period was continuous and uninterrupted. If the deserting spouse returned home or attempted reconciliation during the one-year period, the abandonment claim might be jeopardized as it would not be deemed a continuous duration.

Establishing Lack of Justification

The final step in proving abandonment in New York is to show that the leaving spouse had no justifiable reason for the departure. A legitimate reason might involve fleeing to escape abuse, dangerous living conditions, or other circumstances that put the spouse’s well-being at risk.

To establish a lack of justification, evidence must be presented that disproves any valid reasons the leaving spouse may claim for their departure. For example, documentation of a safe and stable marital home environment can help counter claims of abuse or intolerable living conditions.

Moreover, correspondence between both parties during the abandonment period (emails, text messages, or letters) may reveal discussions that contradict the leaving spouse’s justification for leaving. Finally, if the leaving spouse abandoned the marital home specifically to cause emotional distress or financial hardship to the other spouse, demonstrating a deliberate intent to inflict harm can further strengthen the abandonment claim.

When filing for divorce based on abandonment, it’s essential to consult with an experienced Manhattan divorce attorney who can help investigate the details of the case and substantiate the abandonment. A skilled attorney can also help in obtaining the necessary legal documents required to avoid putting the well-being of any children involved at risk and terminate the parental rights of the deserting spouse, if necessary. An attorney can be a helpful resource and an advocate who can help you navigate the legal processes necessary to assert your rights as an abandoned spouse.

Working with an Experienced New York City Family Law Attorney

Establishing the grounds for abandonment in a fault-based divorce can prove to be a complex legal matter without the help of an experienced New York City family law attorney. If you are considering filing a divorce due to abandonment, getting the help of an attorney can make compiling evidence and building your case easier. A skilled attorney can also help in representing your and your family’s best interests and in pursuing legal action in case of criminal neglect or abandonment of your children.

Juan Luciano, a qualified Manhattan family law attorney, can help you in navigating the legal process of filing a fault-based divorce and in asserting your spousal rights. Contact Juan Luciano Divorce Lawyer today at (212) 537-5859 to schedule a consultation.

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