What is Considered Abandonment in a Marriage in Utah?

What is Considered Abandonment in a Marriage in Utah?

According to Utah’s divorce laws, there are two types of abandonment:

  1. Physical abandonment
  2. Constructive abandonment

1. Physical Abandonment

According to Utah Code Section 30-3-1, abandonment or willful desertion occurs when one spouse deserts the other for more than one year. The abandonment must occur without consent or justification, and with the intent of not renewing the marital relationship.

Physical abandonment is considered sufficient grounds for divorce. That said, Utah is a no-fault divorce state and hence the abandoned spouse does not have to prove wrongdoing on the part of the other spouse to obtain a divorce decree. However, the abandoned spouse may allege and prove conclusively physical abandonment by the other spouse to get higher alimony and sole/primary child custody.

Physical abandonment or willful desertion occurs when one spouse walks away from home without justification, without communicating with the other spouse, and with no intention to return. The other spouse may be left to cope with financial and emotional upheavals. Utah’s laws state that if the period of abandonment exceeds one year, then it can be used as a ground for sole child custody and higher alimony. So, while the abandoned spouse can file for divorce within one year of abandonment and ask for alimony and child custody, Utah’s courts will consider higher alimony and sole/permanent child custody only if the period of abandonment exceeds one year.

Physical abandonment has a significant impact on child custody because when one parent leaves his/her child behind without communicating for more than 12 months, it legally implies, by default, that the other parent now has the de facto sole custody of the child. Later, when or if the abandoning parent returns and asks the courts for custody, he/she may find it very difficult to convince the courts that the child shares any bond with him/her.

In some states, physically abandoning a sick spouse or a minor child may be considered a criminal act.

2. Constructive Abandonment

When one spouse creates conditions that make it impossible for the other spouse to live under the same roof, then the spouse who is wronged may be forced to leave home – and in law, this exit is not considered as abandonment, but as constructive abandonment/desertion. Some examples of marital misconduct that can force a spouse to abandon the home include deliberate refusal by the spouse to engage in sexual relations, constant harassment, willful domestic abuse and violence, refusal to provide finances for running the home, change of home locks without giving the keys to the other spouse, withholding other basic needs of the home, etc.

Constructive abandonment has an impact on child custody for the abandoning parent if he/she allows time to pass, leaving the children in the custody of the parent who committed the marital misconduct. Ideally, the parent who is forced to abandon the marriage should seriously consider taking immediate steps such as filing for divorce, child custody, alimony, etc. If the abandoning parent delays in taking legal action, then the Utah courts will assess the parental fitness of both the spouses when the time comes to decide on child custody.

In both physical and constructive forms of abandonment, a spouse may have his/her parental rights terminated if he/she refuses to pay for child support or otherwise avoid contact with their children for 1 year or more, as specified in Utah Code Section 30-3-1, although, this is a worst-case punishment that rarely happens.

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About the Author: Marco Brown
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Marco C. Brown was named Utah’s Outstanding Family Law Lawyer of the Year in 2015. He graduated with distinction from the University of Nebraska College of Law in 2007 and is currently the managing partner of Brown Family Law, LLC.
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