Recently, several individuals have questioned me regarding the issue of abandonment and how it affects a divorce in Alabama.  Mostly, I see wives who are afraid and anxious because their husbands have threatened them with the idea that, if the wife leaves the home, the husband will somehow gain an advantage once a divorce is filed.

In Alabama, abandonment is one of many  grounds for divorce.  To qualify as abandonment, a spouse must execute a “final departure for a year or greater, without the consent of the other party, without sufficient reason therefor, and without the intention to return [to the marriage].”

First of all, the departure must last for at least a year.  More often than not, the couple still resides together when the allegations of abandonment start flying.  For those who are not still together, the vast majority don’t meet the second requirement, which requires that the departure be without the consent of the remaining party.  If you say to your spouse, “I’m outta here!” and he/she responds, “See ya!” then, in a legal sense, you have agreed to the departure and abandonment does not apply.

The third requirement is that the departure was undertaken without sufficient cause.  If your spouse makes your life a living hell, verbally abusing you and/or your children, or even worse, the law does not require you to stay and tough it out.  If the other party causes the departure through his/her action or inaction, the leaving party cannot be said to have abandoned the marriage.  Lastly, for abandonment to apply, the side alleging the abandonment must prove that the leaving party had no intention of returning to the marriage.  While not impossible, proving the intentions of another human being can prove difficult.

But Ron, “what if we have sex during the alleged abandonment period?”  This is also a question of intent.  If it is “make-up” sex in which the intent to return to being married is expressed somehow, then the clock resets.  If the sex is the result of a lonesome booty call at 3 a.m. for convenience’s sake, then the “marital relation” is not restored.

Taken together, the issues with abandonment as a grounds for divorce as described above, make it a little-used relic of divorce days gone-by.  These days, filing divorce under the no-fault grounds is simply too easy to mess with the burden of proof involved in an abandonment claim.

What about the spouse who takes off and leaves the family high and dry without support?  In Mobile County, once a divorce is filed, no matter the grounds, the Court issues an Order requiring that the parties safeguard the family finances and that the support arrangements will remain in place while the divorce is pending.  If a party violates this Order, they may be held in contempt and even jailed until such time as they see the light.

If your spouse threatens you with abandonment, don’t hesitate to contact me.  I will meet with you face-to-face, review your circumstances, and give you a roadmap for navigating your next steps.  Call me at 251-445-0891, or email me at ron@mcbaylaw.com.

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