Under New Jersey law, marital abandonment is defined as a spouse's willful desertion for a period of at least 12 months. To prove a case for abandonment, it must be shown that your spouse has been living at a separate residence for at least one year without your consent. In addition, you were not responsible for causing the departure through unreasonable behavior such as physical or mental abuse, or the withholding of marital relations. Finally, it must be proven that your spouse refused to contribute financially towards expenses for you, your children and your household. These are just the basics, however; there are other legal technicalities that you should discuss with a divorce attorney. For instance, the period of desertion must have been continuous, meaning that your spouse chose not to return to the marital home for at least one full year. The courts also recognize certain circumstances which may force a spouse to move away from the family, such as a job transfer. For example, the courts will not view your spouse moving away as “willful” abandonment if you refuse to move to the new location. A divorce lawyer can also explain the concept of constructive desertion, which pertains to desertion that is caused by a spouse's misconduct. There is no specific definition of what constitutes as misconduct, but it must be an action that has made the marriage insufferable to the point where the other spouse had good reason to leave. An attorney will ask you pertinent questions about your marriage to verify whether or not your spouse's desertion may be seen as constructive by the courts. If it is determined that your spouse has no legal grounds for abandonment, your attorney can help you decide if you should file for a contested (fault) or uncontested (no-fault) divorce.
By filing for divorce based on abandonment, you would be pursuing a contested divorce, which typically involves litigation. For this reason, many spouses choose uncontested divorce, which would simply state that the marriage cannot continue due to “irreconcilable differences”. Although this option is quicker and less costly than a contested divorce, it may be in your best interest to file under fault-based grounds. New Jersey family courts do not consider fault in the determination of most orders pertaining to a divorce, but it can have some impact on the issue of child custody. By your spouse intentionally leaving the household and not supporting your children, the court may rule that your spouse is undeserving of physical custody. However, the courts are not likely to take away his or her legal custody rights, which refer to the right to participate in making decisions about the children's education, health care, religious training, etc. Your attorney can help you determine if there are legitimate grounds to ask for sole legal custody, as well as physical custody of your children.
If you are considering filing for a contested divorce based on abandonment or any other at-fault grounds, please speak with the divorce attorneys of Villani & DeLuca. Partner Vincent C. DeLuca, Esq. will advise you of all your available legal options, and help you decide the best course of action for protecting your interests. Mr. DeLuca is a family law attorney with over 20 years of divorce litigation experience. He is also a state certified Economic Mediator and a Matrimonial Attorney as certified by the Supreme Court of New Jersey—a distinction held by less than 0.002% of all active attorneys in New Jersey. Please call (732) 965-3350 to discuss your right and options during a free consultation!