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Abandonment and Desertion in Divorce

Every day miserable people facing divorce all over the world make a decision to stay in the house with their spouse, even though they know both of them would be better off if they separated. They stay for any number of reasons -- to be close to their children, fear of any change, not enough cash to afford another place. Lots of them stay because they're afraid they'll be accused of abandonment -- of desertion. In some cases, their fears are justified. Usually they're not.

In my experience, abandonment and desertion are vastly overrated as issues in divorce. For starters, in most states, the proving of fault has become less significant generally. In most states, incompatibility is the grounds for divorce in the overwhelming majority of cases, and the judge is interested only reluctantly, if at all, in the question of who caused it. Secondly, in most states, a showing of abandonment requires not only that the spouse has left but also that the spouse has tried to keep his or her whereabouts a secret and/or has failed to support the family.

If you're leaving home and are worried about abandonment, I can't give you a blanket authorization, because the laws in each state really do vary as they apply to abandonment. What I can tell you is that, even if you have a problem, that problem will be far less severe if you can show that you've made sure your spouse and your children know how to reach you and that you've continued to provide necessary support for your family.

This doesn't mean, of course, that leaving is the right decision. The departure of either parent is nearly always brutally painful for children and spouses alike. Often the right decision is to stay and continue caring for a family in the face of difficulty. My point is that the legal concern about abandonment and desertion is often overblown.

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