Ask Cari: “Can I Leave the Marital Home Before the Divorce is Commenced?”

Rincker Law Family/Matrimonial Law Leave a Comment

I am frequently asked this question during divorce consultations.  There is a fear out there due to the law of abandonment that a spouse will hurt his/her legal position in a divorce if he/she vacates the marital home before the divorce is commenced.

“Actual abandonment” is still a ground for divorce in the state of New York; however, the departure must be unjustified, voluntary, without the consent from the party, and without the intention to return to the marital home.

If both spouses agree that one party should leave the marital residence for whatever reason, then this departure is with the consent of the other party; thus, actual abandonment is no longer a valid ground for divorce.   I recommend getting the other spouse to put his/her consent in writing (i.e., a “Move-Out Letter“).

Why does this matter?  It likely doesn’t.  Grounds for divorce, however, may have some bearing on equitable distribution.  Also, courts do lean towards maintaining status quo (if it ain’t broke, don’t fix it, right?) so I would think twice about vacating the marital home where the children live if you seek physical custody in the divorce action.  But otherwise, a couple still needs a grounds to get divorced in New York.

In way of background, prior to October 12, 2010, the only “no fault” ground available in New York were the following:  (1) living separate and apart for more than one year following a judgment of separation by a court pursuant to DRL § 170(5), or (2) living separate and apart for more than one year following the execution of a written separation agreement (“Conversion Divorce”).

The “fault” grounds include adultery, cruel and inhuman treatment, abandonment (actual or constructive abandonment), imprisonment, annulments/declaration as to the nullity of a marriage, and dissolution.  As stated above, grounds for a divorce may make a difference with equitable distribution; however, they can be difficult (and expensive) to litigate.

Divorces commenced on or after October 12, 2010 now have an option for a new “no fault” ground for divorce.  It did not abolish the old grounds but instead added an additional ground for an “irretrievable breakdown” pursuant to DRL § 170(7).  At least one party must state under oath that the marital relationship “has broken down irretrievably for a period of at least six months.”  Like any ground for divorce, a defendant may counterclaim under the same ground.

Put simply, New York is and has always been a grounds divorce state.  Actual abandonment and irretrievable breakdown are just two different kinds of grounds.  If you leave the marital residence with the consent of your spouse, then it’s not actual abandonment.

Oh-one more thing:  don’t plan on moving too far without consulting with an attorney (especially if you have kids). That’s a whole other can of worms (and another blog post).

Another lovely lawyer disclaimer:  This is the how I see it in the State of New York.  As always, you are encouraged to speak to a lawyer licensed in your jurisdiction.  Family and matrimonial law are state law matters and varies from state-to-state.

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