Abandonment Laws in a Florida Divorce

By John Stevens J.D.

Florida law provides that a court may grant a divorce request if the marriage is “irretrievably broken.” Whether the circumstances of a particular case rise to the level of an irretrievably broken marriage depends on the facts of the case. One circumstance under which a Florida court may make such a finding is when one spouse abandons the other. Abandonment, sometimes referred to as “desertion,” may be actual or implied under the circumstances.

Absolute and Limited Divorces

Two types of divorces are available under Florida law, absolute divorce and limited divorce. Under an absolute divorce order, the parties are free to remarry and the court divides assets and debts. Under a limited divorce order, the parties remain legally married and may not remarry. As with an absolute divorce, the court can also make orders regarding property and debt division. Abandonment constitutes grounds under which a court can grant either type of divorce.

Abandonment Requirements

The party alleging abandonment, known as the “petitioner,” as grounds for the divorce has the burden of establishing abandonment. To establish abandonment, the petitioner must show the abandonment lasted at least 12 consecutive months. The petitioner must also show the abandonment was malicious and willful, as opposed to accidental or involuntary. A claim of abandonment will likely fail if the other spouse had been on life support in a hospital, for example, because that spouse had no choice in the matter. Finally, the petitioning spouse must show there is no reasonable possibility, under the circumstances, for the couple to salvage their marital relationship.

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Actual Abandonment

Actual abandonment is the category of abandonment most people envision upon hearing the term “abandon.” Actual abandonment means that one spouse has physically moved out of the marital residence and has no intention of returning to the residence for purposes of continuing the marital relationship. Actual abandonment may exist even if the abandoning spouse left his personal property behind.

Constructive Abandonment

Whereas actual abandonment applies when a spouse physically moves out of the marital residence, the petitioner may establish constructive abandonment even if the spouses still reside together. Constructive abandonment means that, although one spouse has not physically left, the circumstances are such that the law views the situation as if one spouse might as well have physically moved away. For example, the willful refusal to participate in sexual activity, despite the ability to do so, may constitute constructive abandonment. Think of constructive abandonment as a means of describing emotional abandonment. Creating a situation in the home that can lead to serious physical or emotional injury may give rise to a claim of constructive abandonment. The likelihood you will be able to establish that constructive abandonment has occurred varies greatly, depending on the particular facts of the case.

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