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Abandonment divorce is a dissolution of marriage based on the fact that one spouse left the marital home and did not return. The exact elements necessary to qualify for this type of divorce vary from one state to another. There are some elements that tend to be common, however. These include lack of agreement to live apart and lack of reconciliation.
It is regarded as normal for spouses to occupy the same residence. If one spouse decides to leave the residence to pursue other interests and does not return, it is likely that the remaining spouse can claim abandonment. Divorce can generally be divided into two broad categories: fault and no-fault. In a fault divorce, one spouse accuses the other of being responsible for destroying the marriage due to certain causes. An abandonment divorce is granted on the grounds that one spouse left the marital home without the agreement of the other spouse.
Abandonment divorce is not usually granted when people have agreed to separate and thereafter live apart for an extended period of time. This is generally true even if the two partners agreed to separate and then one wishes to reconcile but is not sure of the whereabouts of her partner. One of the elements of abandonment divorce that may vary from one state to another is the amount of time that must elapse.
A person is not usually considered to be abandoned immediately after her spouse leaves. It is also not usually left up to the victim to determine how long her partner must remain gone before she qualifies. State law will generally specify the appropriate period.
Reconciliation usually damages a person's claim of abandonment. In some instances a person may leave home, but then he may return before the qualifying time has elapsed. If that same individual leaves home again, the time period generally must start over. Most states do not allow periods of absence to be added together for the sake of claiming abandonment.
Another element that may vary from state to state is whether or not a person can file for abandonment divorce if she knows the whereabouts of her partner. A man may, for instance, leave without the agreement of his wife. He may later call and announce that he is staying at his mother's and is not sure if he will return. In some states, this may qualify as abandonment divorce but in other states it may not.
@Soulfox -- good question and the answer to it might depend on the state where the divorce is filed.
Still, you can imagine that the person in jail might have a good argument against abandonment in your scenario.
But that might not matter a whole lot because a spouse filing for divorce in this case could rely on some other grounds. Let's say a husband is a bad boy criminal and winds up in the jail. You'd better believe his wife has grounds for divorce. The grounds might not be abandonment, but there are plenty of other reasons a spouse is justified in filing a divorce. In my bad boy husband example, the fact is state lawmakers have no interest in making sure that the wife is trapped in a bad marriage. The fact that the husband is a bad boy criminal and is in jail will usually be enough of a reason for a court to grant a divorce.
What if one spouse is thrown in the state pen for committing a felony? Can the other spouse file for divorce on the grounds that he or she was abandoned? Such incarceration would seem to meet the requirements for abandonment, unless the abandonment must be a voluntary choice unless one that is forced by a prison sentence.
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