A Guide to Abandonment in Divorce
South Carolina recognizes five grounds for seeking divorce, and one of those is abandonment, also called desertion. If your spouse has abandoned you, then you can file for divorce. You can also raise abandonment when it comes to child custody, alimony, and the division of marital property.
Surasky Law has represented men and women in the divorce process for almost 50 years. We have created this guide to help our clients better understand what abandonment is and how it might affect their divorce. Contact our Aiken, SC divorce lawyer today for more information or for an individualized case assessment.
What is Abandonment in South Carolina?
Abandonment is pretty much what it sounds like—your spouse has left the marital home without an intent to come back. Some people wake up one day or come back from work only to find that their spouse is gone.
Here is what abandonment is not:
It’s not abandonment if your spouse travels for long periods for work but you stay in contact and you both intend to live together in the future. That's a simple absence from the house.
It’s not abandonment if your spouse moves out of the house because you are fighting but continues to contribute to your household. This might be a temporary separation.
It’s not abandonment if you reach an agreement with your spouse to separate. This is a voluntary separation.
You are abandoned or deserted if your spouse leaves without an agreement and doesn’t return.
What Are the Requirements to Prove Abandonment?
In South Carolina, you will need to show the following:
Your spouse left for at least one year without agreement or justification.
Your spouse didn’t provide any support during that time.
If you can’t prove both elements, you can’t claim desertion as a ground for divorce. You will need to seek a different fault ground (like adultery or drunkenness) or you will need to claim irreconcilable differences.
What is the Difference Between Abandonment and Irreconcilable Differences?
They are similar. Both require separation of at least one year. But if your spouse continues to support you—such as paying a portion of the mortgage on your house—then you can’t claim abandonment. You might still file for no-fault divorce based on irreconcilable differences, provided you have been living apart for a year.
Are There Advantages in South Carolina to Claiming Abandonment?
Some people wonder why they would ever file for divorce based on abandonment when they could just claim irreconcilable differences. Here’s why. If you prove abandonment, a judge will consider that when deciding:
Division of marital property
Generally, you will have a stronger hand to play in your divorce if you can prove your spouse has abandoned you.
How Does Abandonment Affect Child Custody?
It can impact child custody in a couple ways. For example, if you can’t find your spouse, then he or she will not participate in the divorce hearing. You can’t negotiate child custody, and it is likely a judge will award you full custody of the children.
South Carolina requires that you try to find your spouse when you file for divorce. And sometimes you might be successful, which means he or she will have notice of the hearing and might show up. Nevertheless, abandonment can work to your advantage.
A judge considers several factors when deciding custody, such as each parent’s relationship with the children. A parent who has abandoned them for a year or more will face an uphill climb getting custody in court. For this reason, seeking a divorce based on abandonment could strengthen your claim to custody.
Can Abandonment Affect the Division of Marital Property?
If you were abandoned, you had no financial help from your spouse for at least a year. You paid your mortgage, car payment, and other bills all on your own. If you have children, you fully supported them financially while your spouse was gone.
A judge is more inclined to give you a greater share of marital assets if you were abandoned. South Carolina does not require a 50/50 division. Instead, the division should be equitable or fair. It is certainly unfair to require you to support yourself all on your own if abandoned. Our Aiken divorce lawyer can argue you deserve a greater share of marital assets than your deserted spouse.
Will Abandonment Affect Alimony?
With alimony, a higher-earning spouse makes payments to a lower-earning spouse. The effect of abandonment will depend on which spouse left the house:
If you are the lower-earning spouse abandoned by a higher-earning spouse, your odds of getting alimony are stronger.
If you are the higher-earning spouse abandoned by a lower-earning spouse, your chances of having to pay alimony are lower.
It also matters if the deserting spouse sets up a household with a romantic partner while married. If so, this spouse will not receive alimony.
What Evidence Do You Need to Prove Abandonment?
Proving abandonment is tricky. Essentially, you are trying to prove negatives—your deserting spouse didn’t support you for a year and didn’t intend to return to live with you. That’s hard to do. How do you “prove” someone didn’t send you money?
Some evidence that is helpful includes:
Financial records which show you paid all the bills for the year in question. This evidence can include bank and credit card statements.
Statements from your spouse’s family which show they don’t know where he or she went.
Phone records showing you didn’t talk with your spouse during the year.
Your own memories about when you discovered you were abandoned.
Talk with an experienced divorce lawyer. If your spouse wants to challenge the alleged abandonment, then he or she will have to come forward with evidence, like canceled checks or bank statements.
Contact Surasky Law
Abandonment is difficult to cope with. Some people saw no warning signs that their marriage was in trouble until one day their spouse just left. If you are considering divorce, or if you have already filed, call Surasky Law. We can represent you in divorce proceedings and will meet for a consultation.