Going through a divorce is a painful process, even under the best of circumstances. However, the process is much more painful and traumatic when you have been abandoned by your spouse without any warning. In addition to the emotional shock, this can be financially devastating as well if your spouse has severed all ties, including his or her financial responsibilities to you and your children. Fortunately, there are steps you can take to ensure that your legal rights are protected, and that your spouse is held responsible for his or her financial obligations, including alimony and child support. A skilled divorce lawyer will help you navigate every step of the divorce process, recommend the best legal course of action, and secure the financial settlement that you deserve.
What Is Marital Abandonment?
In New Jersey, marital abandonment is the sudden and willful desertion of the marriage for a period of at least 12 months. While New Jersey is a no-fault state, divorcing couples also have the option of seeking a fault-based divorce. Marital abandonment qualifies as one of the fault-based grounds for divorce in the Garden State. However, the spouse that is seeking the divorce must prove the following:
- Your spouse has been living outside the marital home for at least one year.
- You did not agree to the separation.
- You did not cause the separation.
- Your spouse did not support you or your children while they were living outside of the home.
There are two types of marital abandonment, including the following:
- Criminal abandonment: Also known as active abandonment, this occurs when one spouse suddenly stops providing financial, emotional and other support for the other spouse or minor children without just cause. For example, if you develop a serious, life-threatening disease, and your spouse decides to leave because they do not want to take on the role of caretaker, the court will not recognize your spouse’s desire to leave as grounds for divorce. Since New Jersey is a no-fault state, your spouse may still be granted a divorce, but they may be required to provide financial assistance through alimony. In addition, if you have children, your spouse will be financially obligated to provide for any minor children.
- Constructive abandonment: This type of abandonment occurs when one spouse has made conditions too intolerable to stay. If you are citing constructive abandonment as the reason for your divorce, you will need to prove that there was just cause for leaving the marriage. For example, you may claim constructive abandonment if your spouse committed adultery, has a chronic substance abuse problem, or is physically or mentally abusive towards you or your children.
What Is Not Considered Abandonment?
There are some circumstances that you might think would qualify as abandonment, even if your spouse did not intentionally abandon the marriage. For example, if your spouse is in a coma, or suffered an injury that caused amnesia or a permanent disability, this does not qualify as abandonment. In addition, if you or your children have been the victim of spousal abuse or child abuse, and your health and safety is threatened, leaving your spouse is not considered abandonment. If you are leaving your spouse under these conditions, it is highly recommended that you consider getting a restraining order or a protection order so that you and your children are protected against an abusive or violent spouse.
What Steps Should I Take If My Spouse Abandoned the Marriage?
Once the dust has settled, and the reality of the situation as set in, there are proactive steps you can take that will ensure that your legal rights are protected, and that you receive the maximum settlement that you deserve.
- Keep copies of everything. Start saving copies of all emails, text messages and written notes you receive from your spouse. Keep a file on your computer, and print out copies of every correspondence. This can be extremely helpful, particularly if your spouse made promises that they try to back out of, like paying for your legal fees, health insurance and any other expenses. If your spouse tries to back out of these promises, you can provide copies of his emails or texts as evidence.
- Hire the best divorce lawyer you can afford. As the saying goes, you get what you pay for. This statement also applies to divorce lawyers. Depending on your situation, there may be organizations in your area that work with low-income individuals, or women in crisis. These organizations may also be able to recommend a divorce lawyer who does pro bono work, or who will allow you to set up a payment plan. If these options are not available to you, figure out what you can afford and start looking for a divorce lawyer who has a proven track record of reaching successful settlements for individuals who are in a similar situation as you. If friends of family members recommend someone, do your research and meet with him or her to determine whether it is a good fit. Many lawyers provide a free initial consultation.
- Read all documents thoroughly. Start with the Marital Termination Agreement (MTA), which is a legal document that explains the terms of a divorce and provides a framework for the couple’s relationship after the divorce has been settled. This is an extremely important document because it includes information about assets and debts, alimony, child support and visitations considerations and other legally enforceable issues related to the divorce. Consider having a trusted friend or family member read the document as well, in case they pick up on details that you may have missed. If changes were made to the MTA, do not sign the document until you have thoroughly reviewed the final draft.
- Think about the future. While you may still be years away from retirement age, you will need to consider things like retirement accounts, pensions and how your marital property is going to be distributed. In addition, consider all of the expenses that are related to your children, from sports equipment and music lessons to medical expenses, car insurance and college. This should all be addressed in the MTA.
- Research similar divorce cases. If you spend time looking into divorce cases in your state, you will learn that anything can be changed or modified in a divorce decree. Your divorce lawyer will help you find facts that will support your claims and secure a fair settlement.
- Do not keep the family house if you cannot afford it. It can be very difficult to leave the home that you have lived in for years, and where you raised your children together. However, it is important that you consider all of the costs associated with keeping the house, including the mortgage, property taxes, utilities and any repairs necessary to maintain the home. While you may be emotionally attached to the house, it may make more sense financially to downsize and move to a home that is more affordable. If you have children that are still in school, try to find a home that is near their school.
- Know your rights when it comes to child support and alimony payments. If your spouse is responsible for making alimony payments, they are legally required to make those payments. If they fall behind on these payments, it is a violation of a court order. An experienced divorce lawyer can work with you to ensure that you receive alimony and child support payments. If the problem continues, there are other options you can pursue, including negotiating a settlement amount with your former spouse, requesting a wage garnishment order, asking for a contempt of court finding or pushing alimony via a qualified domestic relations order.
How Does Marital Abandonment Impact Child Custody?
Marital abandonment does not usually have a significant impact on how a judge will determine the outcome of a divorce settlement since New Jersey is a no-fault state. However, when it comes to child custody, marital abandonment has much more of a bearing on who will be granted custody of the children. For example, if you had sole custody of your children during the year or more that your spouse had been gone, the court is likely to award permanent custody to you. A dedicated divorce lawyer will handle custody issues if you were abandoned by your spouse.
Somerville Divorce Lawyers at Lyons & Associates, P.C. Represent Clients Who Are Victims of Marital Abandonment
If your spouse has abandoned your marriage with no warning, we understand how devastating this can be, particularly if you have children. Our dedicated Somerville divorce lawyers at Lyons & Associates, P.C. will work tirelessly to protect your legal rights and help you navigate every step of the divorce process. To schedule a free consultation, call us today at 908-575-9777 or contact us online. Located in Somerville and Morristown, we serve clients throughout Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.