What is Spousal Desertion Under Arizona Law?
What is the meaning of marriage abandonment in Arizona?
As mentioned earlier, not all marriages are filled with love, kindness, and support. Sometimes one spouse abandons the other, and that is more than just a physical absence or separation. Divorce, in some cases, is the answer.
What does abandonment in an Arizona marriage mean? Abandonment is defined as "a general or indefinite forsaking or desertion" and it can be considered abandonment when there are physical, contractual, or spousal duties at play. For example, "a husband who deliberately leaves and actually abandons his wife for more than a year . "
The legal definition of abandonment in Arizona: "The definition of a ‘desertion’ is a departure from the marital home by one spouse without perfecting a separation agreement or having a legal decree of separation, and the intention of such departure is to terminate the marital relationship, and the husband or wife, who is alleged to have been deserted, was without excuse for allowing more than one year to elapse without making a bona fide effort to effect a reconciliation."
In other words, if you knowingly leave the family home and don’t have a good reason or have not tried to correct the situation, then you may be guilty of desertion or abandonment.
Physical abandonment is simply leaving, but it leads to the question: "What constitutes bad behavior?" Bad conduct in desertion includes adultery and abuse.
What Are the Legal Implications of the Desertion of a Spouse in Arizona?
Depending on the circumstances, desertion or abandonment of a spouse may have serious legal implications. Such implications may arise when dealing with issues concerning alimony and community property division, for example. In an Arizona divorce, a spouse who abandons the marriage is not exempt from an obligation to contribute financially to the other spouse. Thus, an abandoned spouse is eligible to petition the court for spousal maintenance, even if the spouse benefitting from the court order was the one who left the marriage. And in some cases, the spouse clamoring for support might even be eligible for a larger amount: Maintaining the status quo, the Probate Division of the several family law courts of Maricopa County have found that even if the husband waits for wife to vacate the home, the wife deserves Temporary Spousal Maintenance until the parties separate. The rationale is simply that the spouse that makes the most money should be equally responsible to keep things running until the custody arrangement is established or finalized. The law states that it is the high earner who pays the mortgage payment or other expenses. Whether those payments are made out of the high earner’s personal or company income, it legally matters not; the wife must still receive a legal "Credit" for her share of spousal maintenance. In some courts in Maricopa County, that "Credit" is exactly that, a credit that she doesn’t have to pay, it is a direct offset to child support or other bills. In other courts, it is an actual payment that she will receive directly. In both cases, it is necessary that the spouse be legally maintained by the high earning spouse during the process of the divorce. And once the divorce is over, that situation should continue until the children go to school and are relatively self-sufficient.
How Does Spousal Desertion Impact a Divorce Case in Arizona?
In general, the spouse who is less at fault in a divorce gets a better deal from the judge. This is why you should be ready to document your spouse’s wrongdoing during the divorce process. One of the more heinous "marital faults," as Arizona judges see it, is abandonment. Abandoning your family, especially during a time of need, is simply unacceptable, and the Arizona courts do not take it lightly. Unfortunately, these laws are not cut and dry. For example, the law dictates that spouses must not abandon their home for a period of at least one year before a divorce can be legally filed. It’s important to keep in mind that this law only applies to legally married spouses, not those simply living together out of wedlock.
For a divorce attorney in Phoenix AZ, it helps to think of abandonment as simply leaving someone behind when they need you most. Abandonment doesn’t have to involve physical abuse or infidelity. It can also include financial irresponsibility, mental or emotional abuse, and neglect. All of these examples show how selfish a spouse can be for their own needs, how they may be blind to their partner’s suffering. If you want to use claims of abandonment in your request for divorce, you should be able to back it up with proof. You should be able to show that their behavior has led to the breakdown of the marriage and that you should not be at fault. Clues are available through talking to friends and family. It may be hard to get a third party to enter into the discussion, but many people will be willing to lend a hand. The more information you give your attorney, the clearer a case they can make. When filing for divorce, your spouse must respond within 20 days. A judge will set a trial date for 30 to 120 days after that. If the other party does not respond within the deadline, the court may grant you a default judgment, meaning they will not hear what your spouse has to say.
Before filing for divorce in Arizona, consider how your spouse will respond. Presuming that they will not accept the grounds for your divorce is crucial. In many cases, impetuous spouses feel regret deep down and return trying to reconcile with the one they left behind. Now it’s your turn to reverse psychology them – instead of offering reconciliation, you may want to lead them to believe you want to divide assets, alimony, child custody or a combination of all three. This begs the question: when you’re in a relationship with someone you love, why would you destroy it by walking away? There are many reasons that can lead to the demise of a marriage – so many that there are multiple laws to cover each situation.
How to Prove Desertion in Arizona
A party alleging spousal abandonment must show that the other spouse intentionally deserted or willfully departed from the marital home without consent and without justification. See Cates v. Cates, 98 Ariz. 113, 115 (1965). A claim for abandonment must be supported by clear and convincing evidence. Lacognata v Lacognata, 906 P.2d 642, 646 (1995).
Abandonment is a fault-based ground for divorce. As a defense to an abandonment claim, the respondent spouse must show that he/she did not consent to being abandoned. Consent is given when the parties intend to live apart and understand that they are doing so. See id at 645.
Generally, there is no statutory waiting period for either party to file for divorce. However, the Court will enforce a common law "abandonment" waiting period if a spouse voluntarily departs before filing for divorce. The Court will grant temporary spousal maintenance during an abandonment waiting period in an action for divorce where the spouse demonstrates a need for spousal support to allow him/her to be self-supporting as soon as possible. See A.R.S. §25-319(B).
In the event a spouse willfully depart and lives apart for more than a year, that spouse may be eligible for a divorce based on the presumption that the marriage is irretrievably broken. A.R.S. § 25-312(B). Conversely, if a party is found to have willfully abandoned the other party, it may work against their claim for sole legal decision-making and parenting time.
The Legal Remedies for Deserted Spouses in Arizona
For those who have been on the receiving end of a marital abandonment, it can be a bit of a shock to suddenly find yourself all alone. You go to work. Your spouse isn’t there, but maybe they just had a late meeting or decided to go play golf, or you’re away on a business trip. You come back home and they aren’t there. There are clothes still in the closet. Their toothbrush is still in the bathroom, but they’re not there. It’s an emotional situation and can be as traumatic as any divorce. The days, weeks, months and even years can roll past and your spouse never comes home and ultimately, you must do something about it. Fortunately, the State of Arizona makes provision for individuals who have been abandoned by an estranged spouse. Arizona Revised Statutes Section 25-325 governs who is considered abandoned and what needs to be done. Fortunately, the process is simple. A spouse may file a petition with the court for dissolution, which goes into effect if the other spouse cannot be found for 60 days or more . If a spouse is interested in receiving support payments, he or she may move the court for spousal maintenance as well, but the order must be explicit that the spouse is seeking support. Otherwise, the court may not enforce a further order. If the spouse isn’t communicating or cannot be reached, the court may appoint a guardian ad litem to represent his or her interests. The appointment of a guardian ad litem is left to the discretion of the court. On the other hand, if a spouse just left for the weekend on a fishing trip and forgot to tell anyone where they were, the court will not entertain a petition for dissolution. The key factor in abandonment is that the leaving spouse has abandoned the other without any intent of returning. Leaving for a trip and simply forgetting to tell anyone is a verifiable mistake. Leaving on a trip with no intent of coming back is abandonment. If you’re facing an issue of abandonment, seek the advice of an experienced family law attorney. The rules and statutes associated with abandonment can be tricky and it certainly helps to have guidance.
How to Protect Yourself if You are Deserted by Your Spouse
When a spouse or legal partner decides to walk away from the marriage it can leave the other half scrambling for both emotional and physical support. Though Arizona may be a no-fault state when it comes to divorce, there are still laws that help to protect spouses who have been abandoned. Under Arizona law, a spouse must be gone for at least a year or have abandoned the family home for at least 30 days, leaving the other spouse behind. If you believe that your husband or wife has abandoned you, it’s important to take the appropriate steps to guard yourself against loss of support. This is especially true if you share custody of any children or if you rely solely on your spouse for financial support. The law follows two main principles in cases of abandonment: These two principles are intended to protect the rights of those who have been abandoned by ensuring that their lifelines aren’t cut off all of a sudden. Though marital abandonment isn’t grounds for an Arizona divorce, it can have serious repercussions. For example, if your spouse decides to split, they are legally required to keep you on their health insurance plan until divorce proceedings have been finalized, or until the end of the one-year period during which they have abandoned the relationship. Likewise, if your spouse has left you, they are legally required to continue paying alimony until the end of the one-year period. As a result, if you’re currently relying on their income or support, it’s vital to reach out to a divorce attorney to ask what steps should be taken in order to ensure that you’re financially protected against further abandonment. If you suspect that your spouse is going to walk out of your life without warning in the near future, one of the first steps you should take is working with a divorce attorney to divide your joint assets. The longer you wait to divide your assets, the more difficult it will be to do so. In addition, both you and your spouse are a lot more likely to get caught up in a whirlwind of emotion that may make it impossible for you to divide your assets fairly.
Finding an Attorney to Consult About Desertion in Marriage
Whether you have recently learned that your spouse has committed a form of marital abandonment or you are being accused of the same, it is in your best interest to obtain legal advice from an experienced family lawyer. No matter what side of the coin you find yourself on, it is vital to get all of the information you need to understand your legal rights and work toward an effective legal strategy that will help you achieve your desired outcome.
If you have been the victim of marriage abandonment, then seeking legal counsel is important to learn more about your options. This will give you a stronger voice in your case and a better chance at being compensated for the wrongs you have suffered as a result of abandonment. An attorney can assist you with divorce and property division , as well as counseling on child custody and mediation when necessary to prevent further complications in this area of the divorce process. Additionally, divorce may enhance your eligibility for spousal support, which your lawyer can work to negotiate as well. Conversely, you may feel that you are being wrongfully accused of marriage abandonment by your spouse. In the context of your divorce, the other party might claim that you were the one who left the family home or otherwise abandoned your spouse due to your actions. Your lawyer is your best resource for understanding the legal implications of these claims, as well as fighting to clear your reputation.