In a no-fault state such as California, you may think you have the right to divorce your spouse without any legal repercussions. Yet in specific circumstances, leaving your spouse could constitute marital abandonment. In these cases, you could forfeit the right to have a say in the terms of your divorce. Your spouse may automatically gain ownership of any marital property and/or sole custody of children. Consider a few important legal obligations before leaving your spouse to avoid an abandonment or desertion claim.
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If you are guilty of criminal abandonment, you could face a conviction and serious penalties on top of losing your right to participate in your divorce case. Leaving your spouse could constitute criminal abandonment if he or she has health problems or if you have children who are minors and you did not have just cause to leave. If your spouse has a serious illness or disability, for example, and you can no longer act as caretaker, leaving without cause could make you criminally liable.
California’s child abandonment law (California Penal Code Section 273a) makes it illegal to willfully abandon a child under circumstances the parent knows will likely endanger the child. If you divorce your spouse and leave because of domestic violence that may affect your child, for example, the courts could find you guilty of child abandonment. This crime can come with a jail sentence of one year or a prison sentence of up to six years.
If you divorce your spouse and leave while he or she is sick or if you have children that may be in danger, you could face criminal penalties. A criminal record could follow you around for the rest of your life, making it more difficult to find a job and/or housing. You may have to pay substantial fines and legal fees on top of potentially owing your spouse child and/or spousal support. The courts may grant your spouse physical custody of the kids as well.
Abandonment vs. No-Fault Divorce
California allows for no-fault divorces, meaning you can file for divorce without proving the fault of your spouse. You do not need to prove your spouse caused the split for the courts to grant the dissolution. Instead, you can cite irreconcilable differences (the most common reason for divorce in California) or incurable insanity. Filing a no-fault divorce is not the same as abandoning your spouse. It is an acceptable grounds for divorce, as long as your spouse does not have an illness and you are not abandoning your children in a dangerous living situation.
If you are the left-behind spouse, filing a no-fault divorce is often faster and easier than a divorce based on abandonment. A divorce based on abandonment will require you to prove that your spouse’s actions fulfill the definition of this term. Getting this type of divorce will typically result in the same rights and options as a no-fault divorce if your spouse does not respond to the petition. If your spouse deserts you and does not cooperate with your divorce, the courts will grant you a divorce by default. You could also qualify for a protective order after a spouse deserts you to protect you and your children from your spouse unexpectedly returning.
Nullifying Your Marriage
If your spouse left you due to certain reasons, the courts in California may nullify your marriage rather than granting a divorce. Nullification invalidates the marriage as if you were never married to begin with. This can result in certain advantages for you. You may qualify for nullification over a divorce if your spouse left you due to incest, polygamy, his or her insanity, or because of marital fraud. If you entered into the marriage under undue force, you could also qualify for nullification.
You may owe your spouse certain legal obligations that could complicate the divorce process. Speak to an attorney for advice about your particular case.