What is Spousal Abandonment?
Abandonment is not just a word that refers to neglectful parents. In Utah, the law regarding spousal abandonment allows a deserting spouse to obtain a divorce from the other spouse more quickly than a deserting spouse could otherwise expect.
Definition:
Utah law defines spousal abandonment as "[a] spouse’s willful desertion of a husband or wife for one year without cause." Utah Code Ann. § 30-3-1. Additionally, caselaw has established that spousal abandonment occurs when the husband leaves the wife:
The above cited case also notes that abandonment "connotes intent with no intention of returning." Id. The law here is similar to the law in other states, which also allow the deserting spouse to file for divorce without waiting the standard period of years. See Blount v. Blount, 980 So.2d 646 (Miss. App. 2007); Ghandour v. Ghandour, 880 F. Supp. 1211 (N.D. Ill. 1995) .
Characteristics:
Utah’s law on spousal abandonment provides differing periods of time for the deserted spouse to request and obtain an "Order for Divorce" as follows:
These periods of time are shorter than the general period of time provided by the law for spouses who do not qualify as abandoners to divorce – which is the general period of time of three years. Utah Code Ann. § 30-3-1(b).
Implications:
The most important aspect of knowing the definition of spousal abandonment is that it allows an attorney to analyze the spouses’ respective capabilities of terminating their marriage a specific time frame. If a spouse can prove to the satisfaction of the court that abandonment occurred, then that spouse can terminate the marriage with more efficiency. In these situations, one spouse can obtain relief as soon as one year has passed from the time that departure at issue occurred.
What are the Legal Requirements in Utah?
A consideration as to whether a spouse has abandoned another involves the legal criteria that must be met. The first criterion is duration. Utah law indicates a duration period of one year. Utah Code Ann. § 78B-6-104 (2008). However, a mere matter of months, as opposed to years, may be enough to establish spousal abandonment. The intent of the spouse seeking compensation under the statute is the other legal requirement that must be satisfied. If a husband and wife live separate and apart for a period of one year, and "before the condition terminates, the husband or wife, with intent to abandon the other, leaves the place of such separation . . ." the abandoning spouse "is not entitled to any property rights or allowances."
The intent to abandon is the subjective standard to which Utah courts are committed when considering cases of spousal abandonment, leaving future interpretation of the statute unclear. In short, what does it mean to "leave the place of such separation?" Simply vacating the marital residence does not meet the standard; the leaving party must intend to sever the relationship. For example, it is possible that a spouse may never return to the home because of domestic violence. The leaving spouse in this scenario may be considered to have left the residence with intent to abandon, evoking the statute. Utah Courts will also consider whether the parties are engaged in active litigation, or if they merely desire to live separately. Whether the spouses attend counseling sessions or are capable of settling their differences may be relevant to the issue in the eyes of the Court.
Consequences of Abandonment
The implications of spousal abandonment in Utah can be far-reaching, especially when it comes to divorce. While Utah law may not recognize spousal abandonment as a fault-based ground for divorce, the underlying circumstances of such an abandonment may impact the financial and custodial outcomes of your divorce proceedings. When it comes to assets, a court is likely to view spousal abandonment as a form of marital misconduct. And while Utah’s equitable distribution of marital property laws means that you are not entitled to any property at the time of divorce, that does not necessarily mean that you won’t benefit from the conduct of the abandoning spouse. A court may take your spouse’s abandonment into account when dividing assets, awarding you more than 50 percent of the marital estate. Attribution of fault on the part of either spouse is entirely up to the court’s discretion. Abandonment may also be factored into decisions regarding child custody and child support. In the majority of cases, Utah will generally award sole custody to the parent who remains with the child following abandonment of one parent. Financial decisions relating to child support are also likely to be swayed by considerations of the abandoning spouse’s conduct, as a court may rule that the misconduct of an abandoning parent justifies a departure from the child support guidelines to secure the best interest of the child. The prospect of spousal abandonment, whether actual or impending, can make a difficult relationship all the more challenging. While some individuals are able to negotiate the terms of their divorces amicably, others may require the presence of an experienced family law attorney to assist with the process.
Rights of the Abandoned Party
Title issues can be quieted regardless of the date of a filing in Utah. No matter how long the title rights have been around, recognizing your property rights and getting them enforced can happen immediately after an abandonment and even as a result of it.
Now can the abandoned spouse get spousal support and custody rights? Yes. In Utah, Divorce is a no fault proposition and the fact that a spouse leaves the other for an extended period of time, while leaving the kids with the other makes a case for spousal support. To be awarded spousal support the court must consider a number of factors which includes the length of the marriage, as well as the age and health of the parties and the parties earning capability. Usually spousal support is only awarded for a period of time to help the wronged spouse get back on his or her feet. Depending on the case , a judge can award temporary spousal support to the dependent spouse on a permanent basis. This may occur in cases where evidence shows the lack of earning capacity for that spouse or the shared relationship between the parents and children could be irreparably harmed if the non-custodial parent were to move away.
The judge will also usually award temporary custody of the minor children to the custodial spouse during the course of proceedings, but gives the other spouse regular visitation time to allow the child(ren) to keep a relationship with the parent and to avoid alienation. Utah has custody guidelines that courts use when making a decision on who might be the best custodial parent. The other parent must still have access and parenting time with the child(ren) but the judge will usually embody the terms of that relationship into the Court orders.
If one parent violates the orders and withholds the child(ren) from the other parent, due to abandonment issues or other reasons, then the custodial parent could be held in contempt of court and pay for the lack of good faith in nurturing the relationship between the child(ren) and the other parent. Some possible penalties include fines, jail time and make-up time of voluntary relinquishment of the offending party.
How to Defend Against an Abandonment Action
While Utah courts are sympathetic to the rule against spousal abandonment, parties accused of doing so do have some available defenses that can aid them in avoiding the application of the law against spousal abandonment and their consequent liability for spousal support/tr alimony.
First, a defendant in an action for divorce does not abandon a plaintiff spouse if the defendant does not fulfill the marital obligation to provide support during the time that the plaintiff spouse has lawfully abandoned the defendant spouse. Expecting one’s spouse to freely support him or her, while simultaneously abandoning the other spouse is an illogical legal basis that supports abandonment claims.
Second, and perhaps the most obvious, is that a spouse does not abandon their partner if they are forced to leave from their home for the physical well-being and safety of them and/or the children. Domestic violence laws in Utah are expansive and includes both physical and emotional abuse. Where domestic violence is taking place, the spouse suffering from the abuse does not presently have the "sacred contract" (also called "sanctity of marriage") to maintain the relationship and therefore the spouse who has fled from the other enjoys the same rights under the law as the spouse remaining dutifully at home. Indeed, in such situations, the fleeing spouse may even be better off financially so it stands to reason that the court would not support the remaining spouse’s attempt to force their abandoning spouse to pay support when he or she is being forced to financially support him- or her-self and their runaway spouse.
Getting Help
Given the complexities of law surrounding spousal abandonment, it is essential to engage the services of a qualified family law attorney who is experienced in such matters. A skilled attorney can provide legal counsel to help you understand your rights and obligations, to navigate the complex procedural requirements, and to represent your interests in court, if necessary. In Utah, there are several resources and organizations that provide assistance related to spousal abandonment and broader family law issues.
The Utah State Courts website provides a variety of resources for those going through a divorce, including forms, self-help centers, and links to legal assistance organizations . The Family Support Division of the Utah Department of Workforce Services can offer guidance concerning child support, regardless of the initial cause for separation.
The Utah State Bar’s Lawyer Referral Service can connect you with a qualified local attorney specializing in family law. For those who may need financial assistance, free and reduced-cost legal services are available from organizations like the Utah Legal Services and Pro Bono Initiative. Additionally, the Utah Coalition Against Domestic Violence offers information on domestic and sexual violence resources, as well as legal assistance programs.
Support groups can also offer emotional and psychological assistance to parties facing the challenges associated with abandonment. The Utah Domestic Violence Coalition provides a list of local resources for such support.