While divorce is a complicated matter that forever changes important aspects of a couple's life, it has been simplified over the years in some regards. One major way is that it is now easier to obtain a divorce than it was historically. Unfortunately, various ideas of how divorce used to be have remained entrenched in our collective consciousness and have led people to misunderstand their rights. One concept that leads to a lot of confusion is the concept of “abandonment.”
What Did “Abandonment” Used to Mean in the Divorce Context?
Historically, most states required “fault grounds” in order to grant a divorce. In fault divorces one party claimed that he or she should be granted a divorce due to something the other party did and it therefore justifies ending the marriage. These grounds included adultery, mental illness, imprisonment and abandonment.
Technically fault divorce still exists in Illinois, and desertion—another word for abandonment—can be grounds for a fault divorce. The law used to be designed to punish a spouse who was guilty of abandonment. Being guilty of abandonment, historically, had a significant impact on the ultimate distribution of property and child custody issues.
What Does “Abandonment” Mean Now in the Divorce Context?
Abandonment or assertion still technically exists in Illinois as a ground for fault divorce. However, proving that one party abandoned the other has no effect on the distribution of property, child custody decisions, child support, or maintenance orders. In order to obtain a divorce based on desertion in Illinois, the petitioning party must show that one spouse has willfully separated him or herself from his or her spouse for at least one year. However, a no-fault divorce can actually be resolved more quickly with a shorter period of living apart. If the parties have lived apart for six months they can agree to a no-fault divorce. This is much easier than waiting an entire year and then having to prove “willful” desertion. Of course, if the abandoning spouse is not cooperating, pleading desertion may ultimately lead to a faster divorce, but it will not impact the ultimate divorce settlement.
What about Abandonment of the Children?
True “abandonment” of a child can affect custody rights and even result in a parent being found unfit. Yet just moving out of a family home does not constitute this level of abandonment. It requires behavior which shows that a parent intends to permanently turn his or her back on his or her children. That being said, leaving your children behind may have an impact on your ultimate custody arrangement since the courts will consider the value of stability when considering the children’s best interests.
Call Sullivan Taylor & Gumina, P.C.
When your marriage has reached its end, there are a whole host of issues that have to be resolved. Child custody, child support, and property division are only a few. If you are in this situation, please contact the experienced Illinois family law attorneys at Sullivan Taylor & Gumina, P.C. When you call us at (630) 756-5112 we will schedule a consultation to go over your situation and determine what the best strategy is for you going forward. Call us today.