When your spouse leaves your marriage against your will, it can give you the upper hand in divorce proceedings in some respects. However, taking advantage of this edge usually requires filing for divorce on fault grounds, such as abandonment or desertion. Not all states recognize fault grounds. In these jurisdictions, you may need the help of an attorney to bring the circumstances surrounding your divorce to the attention of a judge.
Some states, such as Nevada, protect you from having to pay spousal support or maintenance if your spouse walks out on you. When she leaves, she abandons any right to alimony. Other states protect your right to receive support from your spouse if her abandonment is financial as well as physical and you can’t support yourself without her contribution. Unfortunately, the court usually can’t order your spouse to pay support until you’ve filed for divorce. The court must “attach” such orders to an active litigation and you can’t achieve an active litigation until you file a complaint or petition. States that recognize desertion or abandonment as fault grounds usually require that your spouse remain gone for an extended period of time, often a year or more. You will not be able to claim your right to ask for support until you wait out this time period so you can file.
Possession of the Home
If your spouse deserts you, she leaves you with the right to sole possession of the marital home. This may create a legal presumption that she doesn’t want it for herself. A judge is unlikely to order you to move out so she can move back in. If you hire an attorney to handle your divorce, he can work this to your advantage. If you own the home, it’s possible that the court will order your spouse to maintain the mortgage payments if you don’t have sufficient income to meet them yourself. This is true regardless of the fact that she’s no longer living there.
If you have children, your spouse’s desertion also creates a legal presumption regarding custody. When she left, and if she left your children behind with you, this effectively tells the court that she believes you’re a qualified parent and your children are perfectly safe and happy in your care. Family court judges frequently award custodial rights to the parent who stayed with the children and continued to care for them when the marriage ended.
In some states, such as Virginia, your spouse loses any right to inherit from you if she abandons you, regardless of whether you’ve filed for divorce yet or not. If you die without a will, she will not receive any of your property. You also have the right to disinherit her or write her out of your will in these states. She has no recourse against this.
Even if your state recognizes fault-based divorce, you might want to consider filing on no-fault grounds if it means you can begin exercising your right to receive financial support and a custody order sooner. Consult with a divorce attorney who is familiar with your state’s laws to determine if doing so would have any impact on property distribution. You can also explore the option of filing a complaint for separate maintenance. Separate maintenance means that you’re asking the court to order your spouse to support you while you live apart -- it's a form of legal separation. Depending on the laws in your state, you can often wait out the statutory time period for desertion, then ask the court to convert your separate maintenance decree into a divorce decree.