Is "Spouse Abandonment" Real?

Is "Spouse Abandonment" Real?
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Last updated: April 2006

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.

Question:

My husband says he'll get me for abandonment if I move out. What does that mean?

Answer:

Not much. There’s no such thing as spouse abandonment, at least as a specific crime or, under any civil statute. It used to be that abandoning your wife or children “in destitute or necessitous circumstances” could get you a month in the county workhouse, but not anymore. That old law was apparently abolished around 1920. So you don’t need to worry about some kind of criminal case against you for “abandonment."

There is the criminal offense of “child abandonment,” but that only occurs if you leave a child “who is under the age of 13 without supervision by a responsible person over the age of 14 for a period of 24 hours or more.” If you have kids, and leave them with your husband, it shouldn’t be considered child abandonment. You’d also be safe if you take the kids with you.

There's not much to worry about under the civil law, either. If you stay away long enough, what your husband calls “abandonment” may amount to grounds for divorce. One of the several different grounds listed in the divorce law occurs if someone “has wilfully deserted or absented himself or herself from the petitioner for the space of one year.”

But since it’s much simpler to base a divorce on the grounds that you’ve been separated for at least 6 months, there’s no reason to try proving “wilfull” desertion.

The adoption law says that “abandonment of the child” can be grounds for finding a parent unfit, and terminating their parental rights. But that kind of abandonment must involve a lot more than simply moving out. It should require behavior that clearly shows a parent intended to turn their backs on their children permanently, and forfeit their parental rights.

Sometimes people say “abandonment” when they mean non-support of minor children. If, for example, you moved out and left the kids behind with your husband, he could go to court and ask for child support from you. But that’s just because any parent who has the kids is entitled to support from the parent who doesn’t have them. It’s not because you abandoned him or your kids.

Your main concern should be if you have kids. Getting custody of children is usually an uphill climb if you start without them. But that’s a really practical problem, which doesn’t have much to do with “abandonment.” In any custody case, you need to think about how a judge would think about your behavior.
 

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