Abandonment falls under one of two categories, physical and constructive. With physical abandonment, a spouse does not have to leave physically for it to happen. Constructive abandonment, on the other hand, occurs when a spouse denies marriage essentials to the other spouse, such as intimacy, affection, and financial support.
Abandonment does not occur when your spouse leaves for a couple of days or a month following a heated argument. A month or two of a non-custodial parent’s failure to send child support isn’t considered constructive abandonment, as well. The desertion or abandonment should happen for a long time, with the spouse intending to leave or stop sending support payments permanently.
Getting Custody by Default
While abandonment would affect your divorce, it will have a more massive effect on child custody arrangements. If your spouse physically leaves your children behind, legal professionals from family law firms in Albuquerque, NM say that it would create a custody de facto situation. This means that you gain custody of your children automatically. This arrangement isn’t created through a court order, but happens by default or due to the abandonment of your spouse.
You can make the most of the de facto child custody by filing for a divorce and for the sole physical and legal custody of your child. Temporary child custody arrangements that arise from a parent’s abandonment could become permanent. If your spouse decided to request for custody, it would be difficult for them to convince the court that they have a solid bond with your children and could provide them with enough support.
Laws governing abandonment differ from one state to another. In general, it’s considered abandonment if your spouse willfully and intentionally abandons your family financially and/or physically. Other states, however, might require longer time periods. It’s ultimately up to the court to weigh such circumstances before deciding whether abandonment has truly occurred.