Can You Get a Divorce if Your Spouse Abandons the Home and Takes the Kids?

by Heather Frances J.D. Google
Taking a child can impact your divorce case.

Taking a child can impact your divorce case.

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If your spouse takes the kids and moves out, you may wish to file for divorce immediately. You can file for divorce based on your state’s no-fault grounds or, if your circumstances fit and sufficient time has passed, on other grounds. If your spouse took the children without your permission, you may be in a better strategic position when the court divides custody between you and your spouse since your spouse attempted to interfere with your relationship with the children.

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Reasons for divorce – called grounds – are determined by state law, and the guidelines for obtaining a divorce vary from state to state. Every state provides some type of no-fault grounds even if it also provides fault grounds, such as abandonment. Abandonment grounds often require a certain period of separation before you can file. For example, Arkansas requires 18 months of separation before you can file for divorce on the basis of living separate and apart from your spouse. However, if you choose to file for divorce based on a fault ground, you have to provide evidence to the court to prove the ground exists, so it is often easier to file under your state’s no-fault grounds.

Child Custody

If your spouse takes your children from the marital home without your consent, courts tend to look unfavorably on those actions unless there was a reason for your spouse to take the children, such as fleeing from an abusive situation. Courts may consider it abduction when one parent takes the children without permission if the abandoned parent does not know where the children are. The Parental Kidnapping Prevention Act addresses such situations and makes it easier for law enforcement to cross state lines in these cases. The court may consider which parent took the children -- and whether he had permission -- when making custody determinations. During your divorce, you and your spouse must work out a parenting plan that addresses what type of custody each parent will have and how much time the children will spend with each parent. If the parents cannot agree, the courts will establish a parenting plan that is in the best interests of the children.

Property Division

The court will also divide your marital property during your divorce. Some states allow their courts to consider marital misconduct, such as abandonment, when making their property division if it is noted in the divorce petition, even if you file on a no-fault ground. If your spouse abandons your family home and neglects his responsibility to maintain the home, the court may give you the home, although it may award more of the other marital assets to your spouse.

Filing for Divorce

Generally, you can start your divorce case by filing a divorce petition in your local court. The petition must allege your grounds for divorce and provide other information about the marriage. Then, you must serve a copy of your petition, along with a summons, on your spouse because he has a right to respond to the petition. The court may then schedule a hearing before issuing your divorce decree. If you cannot find your spouse to serve him with divorce papers, state laws often provide a way for you to give the required notice by publishing it in the newspaper or at the courthouse.