If I move out, is that considered abandonment?

Oct 19, 2020 | Child Custody, Divorce, Divorce & Family Law, Divorce Resources & Assistance, Family Court

Defining Abandonment

“Abandonment” is a term that often causes confusion and worry in the context of a divorce. It’s important to be clear on what constitutes abandonment if you are considering moving out of your marital home or if your spouse has left.

In New York State, a divorce is deemed either uncontested or contested, depending on whether the spouses agree on the terms. In both cases, you must have “grounds,” or a legally acceptable reason, for divorce. Abandonment can serve as an acceptable grounds with both an uncontested or a contested divorce.

As a grounds for divorce, abandonment is specifically defined as one spouse leaving the other without justification, consent, or the intent to return, for a period of one year prior to the filing of the divorce papers.

In The Case of Domestic Violence

There is an important protection in place for people who need to leave their home and/or their children in the case of domestic violence. Staying in an unsafe situation is never advised, and you can be assured that your rights will be protected by the law if you and/or your children leave an abusive home. You may be advised to file an Order of Protection, also known as a restraining order, against your spouse to safeguard yourself and your children. An experienced family court attorney will be able to file the order within 24 hours to ensure that the necessary protections are in place.

If your spouse has left the marital home claiming that they are the subject of domestic violence, or if your spouse has filed an Order of Protection, it is imperative that you seek legal counsel as soon as possible.

Protecting Your Rights

If you plan to leave your home and you have children, you should discuss a schedule for caring for and visiting with the children with your spouse. This schedule may be different from formal custody and visitation arrangements that will be made in the course of the divorce proceedings. There are situations in which discussing plans in advance may put one or more of the parties involved in danger. If you feel this is the case, it is important to seek legal counsel. An experienced attorney will be able to file an emergency pleading to put the appropriate arrangements and protections into place.

Child support will ultimately need to be worked out for a divorce to be finalized. However, interim child support may be put in place if one spouse leaves the home. The spouse that has a higher income, regardless of whether they stay in the home or leave, may be ordered to pay child support to the lower earner.

The attorneys at Bates Family Law can advise you on how to proceed if you are thinking about leaving your home. It is important to talk to an experienced attorney in order to both protect your rights and keep you safe. Call Bates Family Law today at (585) 433-4661 to schedule your free consultation.

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“Alison represented our daughter from birth until the finalization of her adoption. She was the most knowledgeable, patient, and thorough attorney we could possibly have worked with. While navigating the Family Court system can be incredibly confusing and taxing, Alison took the time to explain every step, and advocated tirelessly for the best interests of our child.”

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