Will I Be Charged With Abandonment If I Move from the Marital Residence?

One of the most frequently asked questions I receive from a divorce client is, “Can I be charged with abandonment if I move out?”

The process of divorce and the stress on the family as parties go through it causes many litigants to consider separating in advance of any order or final agreement.  Understandably, the person wanting to move is seeking to stabilize his/her life outside of the home, as well as the lives of those remaining in the home.  While the “simple” answer is that it is unlikely that the party moving from the home will be sued for divorce on the basis of abandonment, there are ramifications to leaving the marital residence and establishing a residence elsewhere that can have significant and sometimes long-lasting effects on custody and access of children and the overall economics of the case.

First and foremost, if a divorce action has been commenced, the Notice of Automatic Orders attached to the Summons directs that the residence of the child/ren shall not be changed pending order of the Court or Agreement of the parties.  Accordingly, the party moving from the home cannot take the child/ren with him or her.  Arrangements will have to be made between the parties or by order of the Court directing an access schedule with the child/ren and each parent.   More importantly, on a permanent basis, the child/ren may be more likely to feel a connection and express a desire to live at the marital residence than anywhere else because it is “their normal” and where their neighborhood friends and contacts are.  Children’s wishes are a factor in final custody determinations.

Secondly, moving from the home and leaving the child/ren with the parent remaining, is likely to contradict any future claim that the parent in the home is unfit or unable to care for the child/ren.  Simply put, if the parent remaining were such a bad parent how could the parent vacating the marital residence leave the child/ren behind.

Thirdly, to the extent that the mover from the marital residence leases or buys a new home for himself/herself, (and creates a second house and set of household expenses), there is no guarantee that he or she will be relieved of any/all obligations to contribute to the expenses of the marital residence.  On the contrary, for a variety of reasons including the fact that New York law places a high priority on preserving the marital estate pending a divorce, the Court could render a temporary Order directing the mover to pay a monthly contribution until a final agreement or decision is reached.

Temporary orders are not generally the result of any hearing where testimony is taken and/or evidence presented for a Court to weigh and determine.  More often than not, temporary orders are the result of each party presenting his or her side in writing to the Court, hearing from their attorneys in support/opposition to the order, and the Court rendering a decision thereafter.  To the extent that the temporary order is based on insufficient facts or unsubstantiated allegations (because it’s usually made early on in the litigation when not all information has been exchanged), it has the potential to create financial hardship on one or both of the litigants, making the case more difficult to settle in the end.    Clearly, why would a party who had received a very favorable temporary order make any effort toward a final settlement that would result in him/her receiving less or paying more?

For all of these reasons, before a party decides to leave the marital residence and establish a home elsewhere, he or she should discuss in detail the situation with a family law attorney and obtain a clear picture of the risks and benefits associated with the move.  In the long run, it may make more sense to stay in the home, even though it may be uncomfortable and stressful for everyone, and put all efforts in to moving the matter toward a final settlement.