Divorce and Moving Out - What is Abandonment?

Divorces often don’t happen all at once. The build-up to a divorce can be full of tension, fighting, and in some cases physical danger. You may be tempted to walk out and end the strain, but doing so could affect your Maryland divorce case. Before you start packing, talk to an attorney about whether you can move out without risking abandonment claims in your divorce.

The Delicate Balance of Separation and Abandonment

Maryland divorce law does not make it easy to decide when and how you should move out of an unhealthy relationship. The law requires the person filing for divorce to establish grounds for divorce. Two of those grounds (desertion and voluntary separation) require that parties live separate and apart for a set period of time and the way that you separate can affect your property and custody claims. As much as you might prefer to cut your losses, we recommend that you have a frank conversation with an experienced divorce attorney before you move out.

Abandonment’s Effects on Property Distribution

Generally speaking, Maryland divorce law requires judges to order an equitable distribution of marital property. Equitable distribution can result in each party receiving a percentage of the overall value of marital assets based on a number of factors, including monetary and non-monetary contributions towards the acquisition of assets. However, the Court may also consider the reason for the break-up of the marriage and how one spouse’s conduct caused the divorce, as well as the effects of that conduct (including abandonment) on family assets during the parties’ separation. Your conduct in moving out could shift the percentage of property you receive in divorce, especially if one spouse had to dip into savings or sell assets to make ends meet or pay for an attorney to get the divorce started.

Unlike some other states, in Maryland, moving out does not directly affect whether you will be able to keep ownership of the property when the divorce is over or whether or not you will receive a monetary award for your interest in property. Instead, the Maryland court will decide how all family property is divided. If you moved out without justification (actual desertion), or if your spouse is awarded the home in the judgment of absolute divorce, then the home may still be marital property (if acquired during the marriage), and you would still be entitled to an equitable share of the value. If you have children and left them behind when you moved out, the judge may order that your spouse, and the children remain in the home for up to 3 years after the divorce is finalized. Use and possession is not guaranteed, but dependent upon the court’s evaluation of what would be in the children’s best interests.

Separation and Alimony

Maryland law requires some spouses to be physically separated and wait 12 months before filing for an absolute divorce. If you move out with or without a good reason, during the waiting period you may still be required to pay certain expenses related to your marital home and alimony. If you move out, or if your spouse moves out, with or without good reason, it doesn’t prevent you from asking for or being ordered to pay alimony during the waiting period. If your spouse is able to prove actual desertion, then the amount of alimony (or spousal support) may be impacted. If the status quo of your family is that you were the primary financial provider, then an order for alimony can be entered to help the economically dependent spouse pay for his or her living expenses and support the children in the meantime.

Child Custody Abandonment Concerns

Who moved out of the home can also come into play when the court is deciding issues of child custody and parenting time. In deciding how children will divide their time and who will be responsible for decisions regarding their care, a judge will look at several “best interest” factors. Moving out, regardless of whether it is deemed abandonment, may affect several of those factors:

• Primary Caregiver - If you move out and leave your children in your spouse’s care, it will be hard to argue later that you remained actively involved in their day-to-day care.
• Ability to Maintain Family Relationships - If you bring the children with you when you move out and make it difficult for them to stay connected with their other parent or extended family, this may be used against you in the custody determination.
• Length of Separation - The longer you are away from your children, the greater the impact on your claim for custody or additional parenting time.
• Prior Abandonment or Surrender of Custody - If you move out of the marital home and leave your spouse to cope with the children and the responsibility of the home, this would also be considered in a custody determination.

Before moving out, you should speak to a family law attorney to weigh the harm and benefit of leaving your children behind or taking them with you and disrupting their home and school environment. There may also be an option of waiting to move out until you have an agreement as to custody, even if other issues remain undecided. There isn’t always a good answer to this question, but you should know the effect any choice could have on any custody decision later on.

Defenses to Claims of Abandonment and Desertion

Just because you are the one to change your address doesn’t mean you are at risk of defending yourself against a desertion or abandonment claim. Remember, unless you have an agreement that resolves all issues, most divorce grounds require a period of separation. If your spouse does file a complaint for divorce, there are several defenses that you and your divorce attorney can use to shield yourself from the negative implications of an abandonment or desertion claim:

Constructive Desertion

If you were forced to leave because of your spouse’s misconduct or cruelty, you may be able to turn the tables and claim that he or she deserted you. Desertion is defined as leaving the relationship, not the home. If your spouse willfully refuses sex without cause and stops performing his or her marital duties or endangers your life, safety, health, or self-respect, you may be able to use his or her behavior as a defense to desertion claims.

Voluntary Separation

Sometimes a mutual decision to separate can get turned around in court filings. You may find yourself facing desertion and abandonment claims even when you and your spouse had discussed the separation before it happened. Voluntary separation is still grounds for divorce in Maryland, but by showing that you agreed to separate, live separately without cohabitation or sexual intercourse, and have no hope of reconciliation, a limited or absolute divorce can be entered without issues of fault clouding your property distribution.

Reconciliation or Cohabitation

For desertion to be grounds for an absolute divorce, it must be complete. By definition, abandonment or desertion must:

• Last 12 months without interruption (even one night together can negate desertion claims)
• Be willful and malicious
• Go beyond any reasonable expectation of reconciliation

If you took a break by moving out of the family home, but then returned and asked for another chance, that good faith effort at reconciliation may be a defense against the claim of desertion. If your spouse refuses your request to move back home, he or she could even become the deserter, but then the waiting period will start over, so that will delay the entry of your absolute divorce.

The decision to move out or stay in a home when you know divorce is coming is hard. The emotional cost of remaining in a broken home can be exceptionally high. In some cases, it can even be dangerous for you and your children to stay. The fear of desertion and abandonment claims shouldn’t automatically keep you from moving out. But, it is important to have a thorough discussion with your attorney before you move, so you can understand the risks and make an informed decision.

At the Law Office of Shelly M. Ingram, our divorce lawyers understand the legal and emotional costs of moving out or remaining in a family home. We can help you weigh your options and can advocate for you once the decision is made and the divorce complaint is filed. If you need help with your divorce or child custody matter, contact us today to schedule a confidential consultation with an attorney.