Can I Move Out? – Abandonment and Divorce

Deciding your marriage is over is a terribly difficult decision.  The choice to divorce implicates not only emotions but also finances and the best interest of your children.  Not all marriages are destined to last forever, and if you are heading toward divorce, you may be looking to move forward as quickly as possible.  Moving out and establishing your own home is likely at the top of your list after you have decided to divorce.  Before taking this step, you need to talk to your family law attorney about abandonment and whether it will matter in your divorce.

Fault or No-Fault?

New Jersey has both fault and no-fault grounds available for divorce.  This means that you can allege grounds for divorce, but the court can also grant a divorce based simply on irreconcilable differences.  Abandonment is one of the fault-based grounds available in New Jersey, but it requires that the spouse alleging abandonment prove the following: 1) you have been living apart from your spouse for at least a year; 2) your spouse did not agree to the separation; 3) your spouse did not cause the separation; and 4) you did not provide support for your spouse or children while you were away.

Abandonment and Division of Property

One of the main concerns for a spouse wanting to move out of the marital residence is whether or not abandonment means relinquishing any interest in the marital residence or other marital property.  The answer to this is simply, “no.”  Moving out will not mean that you will sacrifice your right to ask for your equitable share of the marital property.  In other words, you can move out of your shared home and still ask the court to award you your share of the equity.

Abandonment and Alimony

Alimony – or “spousal support” – is at the heart of many contentious divorces.  If your spouse has traditionally earned a lot less than you or even been a stay-at-home parent, he or she may be in a position to request an award of spousal support in your divorce.  There is a list of factors in the New Jersey statute that a judge will consider when deciding whether to award spousal support.  If the person requesting spousal support has clearly been at fault in the divorce, the court can take that into account.  In other words, if you completely abandon your spouse and have shown you can make ends meet without your spouse’s assistance, the court may be less likely to grant you an award of spousal support.

Abandonment and Child Custody

Child custody and parenting schedule decisions will be made based on what is in the best interest of the child.  The court will consider many issues when deciding what is best for the child, and noticeably absent from that list is whether you were a good spouse.  That said, if you moved out and failed to maintain contact with your children while you were away, the court will absolutely consider the fact that you have not been present in your children’s lives when deciding who is the more suitable choice for the primary parent for the children.

Abandonment and Domestic Violence

If you are a victim of domestic violence, remember that your safety and the safety of your children is always the first consideration.  If your spouse is abusive, make sure you take the proper steps to protect yourself and your children before worrying about whether you will receive an equal share of equity in the home or whether the court will grant you spousal support.  Talking to a family law attorney can help you understand a safe and stable path forward in divorce.

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