California Spousal Abandonment Explained

What is Spousal Abandonment?

One of the less often discussed bases for a divorce in California is "spousal abandonment," which is itself a somewhat dated term increasingly replaced with the less pejorative "spousal desertion" or simply "desertion." The concept, as with many grounds for divorce in the U.S., is borrowed from ecclesiastical law. Historically, the church would punish a spouse who left the marriage without justification with an eternity in hell and the other spouse with God-ordained permission to commit adultery in pursuit of a more suitable partner. All of this was, of course, long before the enactment of no-fault divorce laws.
In effect, spousal abandonment is essentially a one-sided separation, where the leaving spouse simply drops his or her obligations toward the marriage and the children if any. Given the state of California’s no-fault divorce law and the modern conception of what marriage is, the grounds for divorce spousal abandonment are no longer recognized by the state.
The concept of abandonment – spousal or otherwise – is something often encountered in people’s finances. For instance, if real estate from a prior relationship hasn’t been sold or used in a new couple’s finances, it’s no uncommon for it to be considered "abandoned" by the prior spouse and counted as a marital asset subject to division, lest the spouse receive a windfall from the ancillary property. Abandonment is also a common finding in cases of breach of fiduciary duty in the spousal context, where the legal duty owed to one spouse by the other is evaded or undermined.
Abandonment is in effect a failure to fulfill the obligations of marriage unilaterally , as it means leaving behind the home and related material goods without making arrangements for their transfer to the remaining spouse. Simply put, it’s not about simply moving out and leaving behind whatever property to the spouse who chooses to remain. In this vein, abandonment is not a failure to pay child support or alimony – these are court-ordered obligations that the law requires to be fulfilled, and their enforcement is available through all of the powers of the court to compel compliance.
Many states do require all leave taking spouses to live apart for a certain period of time before a divorce can be granted as a hedge against unjustified leave taking but these senses of abandonment are consummate to the no-fault laws of each state. California does not require a period of marital separation before a divorce can be granted, although it does require a six-month lapse between the filing of the divorce petition and the judgment – this is merely a cooling off period built into the law.
Abandonment was once regarded as a means of spousal abuse, but thankfully the concept is fading into the annals of history. Like other antiquated forms of invoking marriage law – religious annulments and Holy See declarations of nullity (both of which require dissociation from society and happen at the discretion of a church) – spousal abandonment is an archaic relic of a time when the very concept of marriage as supposed to endure beyond the grave. Thankfully in modern times, such a belief in the permanence of marriage is dying away, and divorce, to paraphrase former President Ronald Wilson Reagan, is becoming simply a change in marital status.

California’s Definition of Spousal Abandonment

Across the country, courts have upheld a set of legal criteria for what abandonment by one spouse means. Terminology pertaining to abandonment is different across states, and one of the most common terminologies used in California law to define spouse abandonment is the concept of "willful desertion." Apostol v. Apostol (1982), 136 CA3d 11, 185 CR 648; Civil Code § 2067. The term "willful desertion," which carries the same meaning as abandonment, is defined as: the wrongful desertion of one partner without consent from the other with an intention to end the marital relationship. Smith v. Smith (1866) 31 Cal 66. According to California Family Code § 5110, regardless of whether there is a legal or de facto separation, it is grounds for dissolution of the marriage to find that the other spouse has abandoned the marriage.
Spousal abandonment and the legal requirements therefore have their roots in our state’s history. While couples are no longer technically required to live together once they get married, the fact that couples will remain legally married even when they are no longer living together is a major factor in why desertion is not as majorly problematic as it once was. Essentially, California law recognizes that spouses do not need to be physically absent from one another to actually be absent in the context of their marriage.
Under California Civil Code § 2069, desertion of one spouse by the other requires proof of the following: The intent to abandon does not mean that the spouse must actually leave the family home in California. It may be enough for him or her to show that he or she has replaced the home with some other suitable place to live. Castaño v. Castaño (1985) 40 CA3d 1008, 115 CR 285.
One of the biggest challenges divorced spouses face is the burden of proof on their lawyers to show that spousal abandonment has occurred in the court of law. In general, whether or not abandonment has actually occurred is a question of fact for a judge to decide.

Spousal Abandonment as a Ground for Divorce?

It is important to note that spousal abandonment may be used as evidence of domestic violence, pursuant to California Family Code Section 6320. In other words, domestic violence inflicted by one spouse on another can constitute absence by that spouse. Also, the Court may issue a restraining order on behalf of the abused spouse to prevent the abuser from coming around. A spouse seeking a restraining order must be able to establish by a preponderance of evidence that abuse occurred.
In a divorce proceeding, a spouse abandoning the marital residence may be the simplest way to find out if a spouse committed acts of domestic violence. When one spouse leaves the family home for a prolonged period or an act of domestic violence is committed giving rise to a temporary restraining order, the court may need to intervene to determine who is entitled to possession of the residence during the divorce proceedings. It is possible to ask the court through a stipulation or filed motion to grant exclusive possession to one of the spouses of the family residence. During the pendency of the divorce proceedings, the court may determine temporary custody of the family home either on a stipulation between the parties or depending on the circumstances.
Possession of personal property, such as a car or furniture, will be decided by the court depending on the facts of the case. Generally the community property will be awarded to the community estate and not to a spouse. The court may exercise its discretion in awarding community assets to a spouse if his or her behavior warrants it, i.e., the act of abandoning the family home, battery or cruelty may justify awarding a greater share of community assets to one spouse.
The consequence of abandoning the family house may also influence issues of child custody. Although the best interests of the children are the general guidelines in the award of custody, the abandonment of the family residence by one of the parents may be considered as evidence for the judge in weighing which parent is best suited for sole or joint custody of the children.
Spousal support may be influenced as a consequence of abandoning the family residence by one spouse. As spousal support is in fact an award of money from one spouse (the supporting spouse) to the other one (the supported spouse), a breach of the support order by an uncooperative spouse may be a source of evidence to the court in determining the amount and the duration of future support awards.

Proving Spousal Abandonment for Purposes of Divorce

If a spouse desires to prove spousal abandonment in a court of law, he or she must present evidence that the other spouse has abandoned the relationship with the intent not to return. In California courts, spousal abandonment typically requires proof that the spouse left without intending to return. An abandonment usually involves physical departure from the family home and must be more than a temporary departure.
There are other ways spouses may abandon each other without ever leaving the family home. When one spouse does not intend to return, he or she can abandon the family home even if he or she never physically departs from it. An example of this form of abandonment might be psychologically abusing the other spouse so that he or she cannot continue living in the home.
A party attempting to prove that the other spouse abandoned the marital home must present compelling evidence. The courts will consider various aspects of the marriage and the events leading to or following the relocation of the spouse who is allegedly abandoning the marriage. Simple refusal to transfer the legal title of a previously shared asset may not be sufficient to successfully prove abandonment. Instead, the court will consider the conditions under which one spouse relocates, the timeframe involved and the overall situation leading up to the relocation.
Surveillance footage, copies of correspondence, etc. are only a few of the means through which the spouse may prove abandonment to the court. It is essential to understand that marital abandonment also may be mutual. If the parties engaged in mutual abandonment without a specific date of separation, the courts may award property according to the equities of each party rather than a strict date of separation. A judge may review the alleged events of abandonment on a case-by-case basis, so an experienced attorney may be necessary to present the case.

Defenses to Spousal Abandonment

A spouse who has left the family home or otherwise separated from his or her husband or (wife) spouse is not automatically stripped of all entitlements, nor can a claimant automatically prevail even if he or she makes a legal abandonment claim against his/her husband or (husband) spouse. There are various defenses that an accusing party may attempt to assert, including but not limited to the following:

• Consent: If the party who departs, leaves, or otherwise leaves the home consents to (1) do so, or (2) authorizes the other spouse to leave, even if that spouse refuses to return, California Family Code section 102 gives that dissenting, non-consenting party the right to "remain at home." However, this potential defense is not absolute, and does not allow that party to simply refuse to leave when asked to do so, and in and of itself does not absolve the dissenter from abandonment-related liabilities.
• Legal Justification / Authorization: If the departing, absent spouse leaves for reasons, whether purely invented or otherwise, that make sense and/or can be reasonably justified by law, he/she may well retain a right to compensation for his services, etc .
• Self-defense / Protection from Physical Harm: Similarly, if the absenting spouse leaves for reasons that can be shown to be for his/herself-physical safety, even if it may not appear to be entirely necessary in light of the situation, then that spouse similarly may not be deemed to have abandoned his/her marriage partner / family.
• Application for Divorce: If the party has either applied for divorce or is the party who has triggered that process the claim of abandonment may be waived or otherwise defeated if he/she seeks or requests the other spouse to move back into the home.
• Resumption of Family Relations: This may be most appropriate for situations in which the couple had previously spent long periods (even years) living apart, so that it may not seem particularly unusual for one or the other to move out, or to leave the home. In such cases, it may be permissible for the spouse separating from the family to do so in the event of a weekender-type separation, without it then being deemed that a claim for abandonment could be necessarily asserted (as it may have been reasonable).

What Should You Do If You Are Abandoned by a Spouse

If you find yourself in the unfortunate situation where you have been abandoned by your spouse, there are certain steps you can take to protect yourself and your interests:
Consider Four Key Questions
When dealing with abandonment, there are four essential questions you need to ask:
Can I pursue legal action for abandonment? Like many legal issues, spousal abandonment has a legal definition, which may not align with its plain-English meaning. Because of this, you should take care to consult with an experienced family law attorney as soon as possible.
If your spouse has left the relationship without consent, they are most likely in violation of at least one familial obligation that they owe to you under California family law. Under normal circumstances, abandonment is grounds for divorce or legal separation.
However, the definition in California law is quite specific. Under California Family Code Section 2625, a spouse may be found to have abandoned the other if they depart from their place of employment or residence (or otherwise secludes themselves), and neglect or refuse to support the other spouse for one year or more. Further, if your spouse "willfully fails to communicate," and you take reasonable steps to locate them, the elements of abandonment are also met.
If my spouse voluntarily left the home and intends to return, do I have legal rights until they return? Each situation is unique, and you may still be within your rights to file for legal separation in such a case. A consultation with an experienced family law attorney can help you assess your situation quickly.
What will happen if I pursue divorce? Although this question requires an honest and presumably unpleasant conversation with a skilled attorney, it is the first step along the road that will ultimately determine how the dissolution of the marriage will affect you. While not all marriages that experience abandonment will end in divorce, often abandonment is the catalyst that removes the couple’s last ties to the marriage.
When faced with a Broken Family:
On the road to permanent end to a marriage, couples go through many steps and rough patches, but it is almost always worth the journey to ensure your future well-being. Your family law attorney will help you discern the next steps in your particular situation.

Visiting With a Family Law Attorney

One of the most significant mistakes that spouses who have been abandoned by their partners make is presuming that they do not need a California attorney to help them with their case. Many people think that since they are the innocent party, their case should be simple and straightforward. They also wrongly think that their ex will not try to deceive the courts in order to get out of their obligations or to seek a windfall.
While a few family law cases end up being simple, the majority are much more complex. Spousal abandonment can bring about a lot of other issues that must be addressed through legal proceedings. These might include the division of assets, debts , child support or custody and spousal support. Failing to have the help of an experienced family law attorney can become very costly during these processes.
The value of a good lawyer can never be understated. Having someone who focuses their legal practice on family law can help you navigate through the process of the dissolution of your marriage. You have enough to deal with when you have been abandoned by your spouse. You should not have to deal with the issues involved in a legal trial or hearing alone. Working with experienced Representation could help you avoid common pitfalls, ensure that you receive the assets and support you are entitled to, and provide you with a stronger position once the marriage is dissolved.