During an initial divorce consultation many prospective litigants ask, “Can I claim marital abandonment in my divorce proceeding?” Since California is a “no fault” divorce state, a spouse can file for divorce without having to prove that the other spouse did something wrong to end the marriage. According to California Family Code Section 2310, a dissolution of marriage or legal separation of two parties may be based on either irreconcilable differences or the permanent legal incapacity to make decisions.
In a California divorce proceeding, most people cite “irreconcilable differences” when filing for divorce. Pursuant to California Family Code Section 2311, “irreconcilable differences” is defined as any grounds determined by the court to be substantial reasons for discontinuing the marriage and makes it clear that the marriage should be dissolved.
Since the definition of irreconcilable differences is so broad, you only need to prove that the marriage is irretrievably broken without assigning fault to either party. Therefore, you don’t need to prove marital abandonment when seeking a divorce in California.
Even though marital abandonment is not a legal ground for divorce in California, many people still have questions about what defines marital abandonment and how it can affect the divorce process. This article will answer common questions about marital abandonment which may hopefully help you determine how to best proceed in your own dissolution matter.
The California Family Code does not specifically define the term “marital abandonment.” However, a commonly used definition defines “marital abandonment” as when a spouse leaves the marriage without the knowledge or consent of the other spouse, and with no intention of returning.
Since California is a “no fault” state, this definition isn’t used to prove that your spouse abandoned you in the eyes of the court, but to merely describe when the act of abandoning the marriage occurs.
It is not marital abandonment if your spouse expresses his or her desire to no longer remain in the marriage, or unexpectedly serves you with a divorce petition, but you desire to stay married. Although it may be difficult to process and cause feelings of betrayal, no legal “abandonment” implications will follow. It merely means that your spouse no longer wishes to continue the marital relationship.
Commonly when spouses separate, one spouse remains in the marital home and the other moves out. If one spouse leaves the marital home, it does not mean that the home suddenly becomes the sole and separate property of the spouse who remains in the home. Since California is a community property state, all property acquired during marriage is considered community property.
Any community property is subject to an equal division between spouses. If the spouses purchase a home during the marriage, then the house remains a community property asset that needs to be divided between the parties, regardless of who is living in it.
Similarly, if one spouse leaves the home, that does not mean that all the community property the spouse left behind in the marital home, instantly becomes the other spouse’s separate property. All assets and obligations obtained during the marriage are considered community property and are subject to an equal division between the parties.
Regardless of whether one spouse abruptly leaves the home without notice or desires to end the marriage, all community property assets and obligations are still subject to an equal division between the parties.
A court has broad discretion to determine the amount, duration, and whether the court shall retain jurisdiction over a permanent spousal support award; however, a court will not recognize fault when factoring how much spousal support a spouse should or should not receive. Thus, a spousal support award will not be affected by a determination of “good” or “bad” conduct.
There are exceptions where a spouse will be prohibited from receiving support. These exceptions include:
Marital abandonment will not prohibit a spouse from receiving support or allow a spouse to receive more spousal support.
When determining child custody, a court focuses on what is in the best interest of the children. Some factors used to determine a child’s best interest include the health, safety, and welfare of the child, a history of abuse by one parent, and the nature and amount of contact that a child has with both parents.
A court will not find a parent “at fault” for abruptly leaving or deciding to end the marriage. Although the amount of time each parent spends with the child may factor into how child custody is awarded, a parent will not lose significant custody time or have his or her parental rights terminated for merely leaving the marital relationship.
There are instances where a parent does abandon his or her children, which can lead to the termination of his or her parental rights. However, the law sets forth specific requirements that must be proven before a parent’s rights are terminated.
Pursuant to California Family Code Section 7822(a)(3), a parent’s parental rights can be terminated if that parent leaves a child in the custody of the other parent for one year, fails to provide any support, fails to communicate, and illustrates his or her intent to abandon the child.
Since a court will focus on the best interests of the child when determining how custody should be awarded, marital abandonment is not a valid claim a parent can use to gain more custody of his or her children. Only in cases where a parent clearly and continuously illustrates his or her intent to abandon the children will a court terminate a parent’s parental rights.
Similar to spousal support and child custody, a court will not consider marital abandonment when determining child support. Pursuant to California Family Code Section 4053, courts are required to calculate child support based on a statewide uniform guideline calculation.
This statute considers many principles when calculating guideline child support including that both parents are mutually responsible for supporting their children and that each parent’s timeshare with the children and annual gross income should be considered when calculating child support.
Since child support calculations must adhere to a strict set of statewide guidelines, courts do not have the ability to increase guideline child support based on a spouse’s claim of marital abandonment. Marital abandonment is not a principle that is discussed in California Family Code Section 4053 and thus cannot be considered when calculating guideline child support.
If you find yourself in a situation where your spouse has left and you do not know where he or she is, you can still file for divorce. One main component of proceeding with the divorce process is to serve the other party with the Summons.
If your spouse left and you are truly unable to locate him or her, you can request that the court permit you to serve your divorce papers by publication. If you are permitted to proceed by service of publication, then you will be required to publish the Summons in a newspaper, at least once per week, for four consecutive weeks.
If your spouse does not file a Response to the Petition within 60 days from when you initially published your Summons, then you can request that the court enter a default judgment. When you request to enter a default judgment, you are asking the court to proceed with the divorce process without your spouse’s participation.
In a default divorce case, you can request spousal support, child support, and child custody, and the court will make orders on these issues that are in accordance with the law and based on evidence you provide. You can also request property division orders.
However, you will be limited to dividing the property that you listed in your Petition. Even when proceeding by default, courts will typically divide marital assets equally, in accordance with community property rules.
Once again, since California is a “no fault” state, marital abandonment is not a specific ground for divorce, nor can it be used as a claim for more support or custody. Regardless of whether your spouse leaves without any notice or unexpectedly notifies you that the marriage is over, support, custody, and the division of marital assets will be divided pursuant to the applicable law.
Whether you are trying to locate your spouse or coming to terms that your marriage is over, proceeding with a divorce can be emotionally draining and confusing. Our attorneys at Cage & Miles understand the emotional toll that many clients undergo and provide compassion while ensuring each client understands the specific applicable law that is pertinent to their case.
Please contact Cage & Miles today to schedule a free consultation and have our compassionate and knowledgeable attorneys thoroughly advise you on the best next steps forward during this difficult time.