When a spouse walks out on a marriage, it sometimes means walking out on the children of the marriage as well. Some states call this desertion and others call it abandonment. In either case, it's usually grounds for divorce in states that recognize fault-based divorces.
Not All Absences Are Desertion
Several factors contribute to the legal definition of abandonment or desertion. Although the exact legal terms for abandonment or desertion can differ from state to state, they usually involve a spouse leaving because he wants to end the marriage. Time periods usually apply as well. A spouse may have to stay away for a year, or even two years, before the absence legally qualifies as desertion. Some states require that the abandoned spouse attempt to reconcile and that the other spouse must refuse. This isn't the case in all states, however.
Abandonment Can Affect Custody
When a spouse abandons the entire family and leaves the children with the other, it creates something called "de facto" custody, which means the abandoned parent has custody based on the circumstances of the abandonment. Courts don't order de facto custody. Circumstances create it. The parent with de facto custody can use the situation to file for divorce, then ask for temporary custody of the children while the divorce is pending. Temporary custody can easily turn into permanent custody, ordered as part of the divorce decree.
Abandonment Requires Non-Payment of Support
Abandoning the children of a marriage typically includes a refusal to contribute financial support to the family as well. Even if you have to wait a year or two before you can file for divorce on grounds of abandonment or desertion, you can ask the court for a temporary order for child support until you can file for divorce.
Desertion Can Terminate Parental Rights
In extreme cases, a parent can ask the court to terminate the parental rights of the spouse who abandoned the family and have him declared him unfit. This usually means proving not only that the absent parent failed to pay support for a long period of time, but that he also refused to have any contact with the children.
A Divorce Lawyer Can Help
The law surrounding children and divorce is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a divorce lawyer.