Abandonment and Moving Out – Does Timing of Separation Matter?

The end of a marriage can sometimes be an amicable split that gives the parties plenty of time to think over their new housing arrangements and contemplate how to handle their next steps.  Unfortunately, this is not always the case, and one spouse may feel the need to move out as soon as possible in order to avoid an acrimonious home environment.  In such a case, the person leaving the home needs to understand marital abandonment and the timing of the separation of the parties.

New Jersey has several fault-based grounds for divorce.  Marital abandonment is one of these grounds, and is defined as willful and continuous desertion for twelve or more months.  For a spouse to prove marital abandonment, he or she must show that the other spouse has lived outside the marital residence for a year or more, that the separation was not mutually agreed upon, the spouse did not force the departure, and the spouse has failed to provide support for the household while gone.  From these elements, it is clear that timing of the separation can definitely matter in the grand scheme of a divorce.  If you leave the marital residence and delay the filing of your divorce for at least a year, there is a chance that your spouse can seek to divorce you on the ground of marital abandonment.  Note, however, that there are several other elements that must be proven.  If your spouse forced you out, for example, or you continued to provide financial support for your spouse, the household, and the children while you were gone, marital abandonment will not be an available ground for divorce for your spouse.

Another important thing to note is that moving out of the marital property will not automatically mean that you lose your interest in the property.  You are not required to remain in the marital residence to make sure you will be awarded your equitable share of the value of the property.  If the residence was marital property when you left such that you are entitled to an equitable share of the home, this will not change even if your spouse can prove all of the grounds of marital abandonment.  Note, however, that refusal to contribute to the marital home for at least twelve months could ultimately impact the share which the court feels you are equitably entitled to receive.

We have experience in helping our clients make important decisions about the timing of their divorce and their major decisions at (732) 529-6937 and we can talk about your divorce and your future.