In New Jersey, marital abandonment is viewed as willful and continued desertion for a period of 12 or more months. This is one of the at-fault grounds for dissolution of marriage in the state. Though no-fault options are also available, some spouses are still motivated to assign blame.
Legal Criteria for Desertion or Marital Abandonment
To demonstrate desertion by your spouse, you must prove the following:
- Your spouse has been residing outside of the marital home for at least one year;
- You did not agree to the separation or abandonment;
- You did not cause the departure; and
- Your spouse failed to support you, your kids and/or the household while away.
Defenses to Marital Abandonment
If you and your spouse have reconciled and lived together at any point after the initial desertion, the clock is reset. The one year period must be continuous. If your spouse is transferred or relocates due to his/her job and you refuse to move as well, this is not considered abandonment by the courts for the purposes of an at-fault divorce ground. Additionally, your behavior is a pertinent consideration for the purposes of establishing abandonment. If you have made it unbearable for your spouse to remain in the marriage, his/her desertion will likely be seen as constructive desertion. This may be due to mental cruelty or physical violence. Even refusal to engage in sexual intercourse can result in constructive desertion. This may also be viewed as cruel and inhuman treatment.
Marital Abandonment and Child Custody
In 2007, New Jersey law added irreconcilable differences as a ground for divorce. This transformed New Jersey into a no-fault state. Though fault based grounds are still available, these days they are rarely used to terminate a marriage. Moreover these at-fault grounds typically have little to no impact on how a judge determines the various orders for your divorce settlement. In the case of child custody, your spouse’s abandonment may have some impact, however. If the court finds that your spouse has deserted the children of the marriage, this can have come bearing on these rulings. Essentially, if you have had sole parental custody for the year or more that your spouse has been gone, the court is likely to make this arrangement permanent and legal in your divorce order.
If you are involved in a contested divorce alleging abandonment or other grounds, the New Jersey Divorce Lawyers of Castronovo & McKinney have the experience and skills needed to assist you through mediation, collaborative law and/or court proceedings.