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When your spouse "leaves" your marriage, the law allows you to use the abandonment as a ground for divorce (if your state allows fault divorce). However, your spouse doesn't have to physically leave the marital home for it to be considered abandonment. There is constructive abandonment, which may happen even when your partner is still living with you.
What It Means
Constructive abandonment occurs when your spouse withholds those things that are widely considered as essential or as natural elements of marriage. For example, the society expects married people to get intimate, support their family financially and show affection to one another. Therefore, your partner will be considered to have constructively abandoned you if they:
The Need for Prolonged Desertion
The law requires constructive abandonment to continue for an extended period, say one year, before it can be used as a ground for divorce. This is necessary to give an allowance for the normal squabbles that are inevitable in most marriages. For example, you can't accuse your partner of constructive abandonment just because you argued over the weekend and they have been sleeping in the other bedroom for two days. Another example is when your partner has been providing (financially) for the family all along, then one month fails to do it; the financial abandonment needs to go on longer than that for it to matter legally.
The Difference with Separation
The main difference between abandonment and desertion is that both spouses must agree for a separation to take place. That is, if your spouse tells you that they want to look for a separate apartment or move to the guest bedroom, and you agree to it, then they are not abandoning you. In such a case, you have agreed to a mutual separation, which cannot be used a ground for divorce.
Now that you have a good understanding of what constructive abandonment is and what it isn't, note that it can affect the terms of your divorce. For example, a parent that abandons their spouse and kids is probably not ready to take care of the kids, which means they may lose custody for the kids. Talk to a lawyer, like one from Caldwell Kennedy & Porter, for more information on how constructive abandonment will affect your divorce.
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