Is Moving Out of the Martial Home Considered Abandonment?

by James Camry on April 5, 2011

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NEW YORK, April 5, 2011 (NYDN) – You want a divorce.  You’re no longer happy in your marriage and want to leave your martial home and begin living on your own.  The question that may be on your mind is, are you legally able to do this without facing consequences?

There are a few things to consider here before we can answer that question.  Have you left the martial home without consent of your spouse?  Have you told your spouse of your new residence or have you just packed your bags and left in the middle of the night?

If you have done the latter, this can be considered abandonment.  In the eyes of the court abandonment is legal grounds for divorce.  Although abandonment is considered grounds for divorce, with the advent of the new NY no-fault divorce law you no longer have to prove grounds for divorce.  Now if your marriage has been irretrievably broken for six months you can get divorced.  So, although leaving the marital residence without consent is technically abandonment if it occurs for a period of one year or more, it really doesn’t matter.

Having legal grounds for divorce used to be important under New York’s old fault based divorce law.  Now, it’s easier to get divorced under the new no-fault law.  Also, just because someone can prove abandonment, adultery or cruel and inhuman treatment does not effect equitable distribution.  This means that just because you can prove that your spouse abandoned you or committed adultery behind your back, this will not influence the division of property.  The Judge will not award you more because of this.

It would be wise to consult a lawyer and discuss potentially entering into a separation agreement with your spouse.  This will ensure that each party’s rights and responsibilities are clearly defined.  If properly drafted, this could prevent your spouse from retaining a right to property or assets that you may accrue during this time period.

It is also important to keep in mind that just because you may live in separate residences, you are still legally married in the eyes of the court.  A separation will not end the marriage, it simply allows the two of you to live apart without a threat of abandonment.

Speak with an experienced lawyer before deciding to move out of the martial home.

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