The term “spousal desertion” certainly has negative connotations, and it is considered grounds for fault-based divorce in Massachusetts. However, if you need to leave home because your living situation has become intolerable, the impact of your “desertion” may not be as great as you might fear—if you plan ahead.
Before leaving the marital home, it is a good idea to assess the situation to see if your move could hurt you in terms of property division, parenting time, and other issues. A Massachusetts divorce lawyer could review your circumstances and help formulate the right plan for making the move. On the other side of the coin, if your spouse has created an inequitable situation by deserting you, a family law attorney may also be able to help you take advantage of opportunities created by that behavior.
Desertion as Grounds for a Fault-Based Divorce
Abandonment or desertion provides grounds for a fault-based divorce if a spouse left voluntarily, without good reason or an intent to return, and without the other spouse’s consent. A spouse must be out of the home for a year or more before the other spouse can file for divorce on grounds of desertion.
However, in most cases, there is no benefit to filing for a fault-based divorce instead of a “no-fault” divorce. If a spouse’s desertion resulted in economic hardship, that financial burden can be raised in a no-fault divorce with the same effect on property division and other issues as in a fault-based divorce.
Does Desertion Affect a Spouse’s Share of Home Equity?
If the spouse who leaves the home has the financial ability to continue to contribute to home expenses such as mortgage payments and repairs, then that spouse may be expected to provide some support to the spouse remaining in the home. The court is looking for a fair financial arrangement.
If one party leaves the other with an unfair burden, the court may seek to make up the difference by allocating a greater share of home equity or other assets to the aggrieved party. When the spouses establish and maintain equitable financial arrangements, by contrast, then the fact that one party left the home voluntarily may have no negative impact on their financial standing in the divorce.
What Effect Does Desertion Have on Custody?
Usually, the parent who remains in the home ends up spending more time with the children. For that reason, desertion can have an impact on orders involving custody and parenting time. During divorce, judges often find it in a child’s best interests to avoid disrupting existing arrangements. If those arrangements involve children spending most of their time with the parent who stayed in the home, the parent who left may not receive the share of custody or parenting time they’d hoped for. If possible, try to work with a family law attorney before one of you leaves the home to establish a parenting arrangement that works best for all.
A Massachusetts Divorce Lawyer Can Help Protect Your Interests When Desertion is an Issue
Whether you are the one leaving or the one left behind, it can be very helpful to work with a Massachusetts divorce attorney who understands how to preserve your options, protect your rights, and take advantage of the best available opportunities presented by the situation. At Koiles Pratt Family Law Group, we are dedicated to providing the right information to help you make informed decisions and we are ready to guide you through the process to find the future you deserve. For a confidential consultation to learn more about your options, contact us today.