Is It Considered Abandonment If I Leave The Marital Home?

There is a misconception concerning “abandonment” or leaving the marital home. Prior to 2010, New York State required divorcing couples to establish “fault” in order to get divorced. One of the grounds was abandonment. One way to show abandonment was to establish that one spouse left the house for a period of one year or more.

However, since, 2010, New York State is now a “no fault” divorce state. Therefore, divorcing spouses do not have to establish any fault, and can simply file for divorce without any grounds. Accordingly, since 2010, virtually every new divorce is filed using the no fault statute, and very few divorces are filed under the old basis of abandonment.

Although, leaving the marital home will no longer be used as a legal basis for a divorce, it still may have some negative consequences. If there are children involved, leaving the home may hurt your ability to gain custody of the children. It is often better to stay in the marital home, until you can discuss, with your attorney, strategies on how you can leave the home without injuring your ability to gain custody.

Even in situations without children, it may not be a good idea to leave the marital home. If you establish another residence, outside the marital home, and you are paying the expenses (mortgage, rent, etc.) for both the marital home and your other residence, that may work against you when computing spousal maintenance (alimony).

Therefore, although leaving the marital home, will not be considered “abandonment”, at least in the legal sense, you should consult with an attorney prior to leaving the home.

David Badanes, Esq. and the Badanes Law Office, P.C. can help you with your divorce and other family law issues. Please call or contact David Badanes, Esq. and the Badanes Law Office, P.C. at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com. The Badanes Law Office, P.C. has offices in Northport, Suffolk County and in Uniondale, Nassau County.

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