Defining Abandonment of Marriage in Florida

The concept of marriage abandonment in Florida is defined under Florida Statute Section 741.30 as "willful, obstreperous, continuous, and obstinate refusal to cohabit with one’s spouse, without just cause or provocation, for one year." This definition incorporates the need for willfulness, obstreperousness, continuity, obstinacy, and absence of just cause or provocation. Translation – Florida incorporates five separate factors in order to determine whether a marriage has been abandoned for purposes of obtaining an injunction against domestic violence. First, in order to be found a person to have willfully abandoned their spouse the conduct must be intentional. A few missed days of texting, phone calls or stopping home may not be enough to establish willfulness. However, a refusal to do so for an extended period of time is likely to fall into the category of willfulness. Second, the abandonment must be obstreperous. Obstinate means "resistant to control: unruly." This means that the refusal to cohabit needs to be aggressively resistant and not passive . Third, the abandonment must have a continuity to it. Essentially, the refusal to cohabit cannot be intermittent. In essence, it cannot be "on again," and "off again" for the needed amount of time. The fourth factor in the definition, obstinacy, means that the abandonment must be "stubborn [and] unyielding." A person refusing to cohabit cannot just be difficult every now and again. The obstinacy has to be continuous and long lasting. Finally, in order for the abandonment to justify the issuance of an injunction, it must be without just cause or provocation. This means that the abandonment cannot be justified by a spouse’s behavior. If the spouse engaging in the abandonment has been abusive this criterion will not be satisfied. This definition is taken from Florida Statute Section 741.30 and is supported by the case law. A person seeking an injunction for domestic violence must establish each of the five categories listed above. If one criterion is not established then that person will not be entitled to an injunction.

Statutory Consequences of Spousal Abandonment

A spouse found guilty of marriage abandonment in the State of Florida may face serious legal repercussions. Abandonment may be cited as the cause for divorce, for instance. The other spouse may elect to pursue a divorce from a spouse who has abandoned him or her to seek legal protection for himself or herself and the children of the marriage. Abandonment is listed explicitly as a reason for which a spouse may file for a divorce under Florida law. Spousal abandonment may also affect matters of child custody and support between the parties. Unless otherwise determined by a judge, spousal abandonment may encourage a judge to grant primary custody of children of the marriage to the non-abandoning spouse. This means that the abandoning spouse will receive less visitation time with his or her children, while the non-abandoning parent may also receive increased child support payments from the abandoning spouse. The abandoning spouse may owe the amount of child support determined by the courts, in addition to alimony payments, if so ordered.
The general legal consequences of spousal abandonment in Florida are intended to penalize the spouse who abandoned the family, while rewarding the spouse who cared for the family. Divorce proceedings typically illustrate these penalties and rewards by granting custody to the non-abandoning spouse and determining his or her eligibility to receive child support and alimony payments. In more extreme cases of spousal abandonment, the courts may determine that the abandoning spouse is unfit to care for children, causing the children to be placed in the custody of the non-abandoning parent.

The Distinction Between a Dissolution of Marriage and the Abandonment of Marriage

In Florida, there is a difference between filing for divorce and claiming abandonment. Technically, a divorce is the formal dissolution of a marriage that is legally established through a court proceeding. This is not to be confused with marital abandonment. Unfortunately, about 40 percent of all first marriages end in divorce.
An abandoned spouse in Florida must ordinarily wait at least two years before they may file for divorce. If marital abandonment is claimed, it can have a significant impact on the divorce process, especially if the abandoned spouse is able to also show that marital assets have been wasted away by the spouse who committed abandonment. A judge may order the abandoning spouse to pay more than half of the remaining assets to the abandoned spouse by way of equitable distribution. If the abandoning spouse is still living in the house, the court will generally allow the abandoned spouse to live there until the divorce is finalized and both parties will be required to pay for expenses such as the mortgage, taxes and insurance.
If a spouse abandons a spouse with children, the abandoning spouse is still responsible to pay child support, even if he or she lives far away.

The Impact of Abandonment on Marital Assets

When it comes to marriage abandonment, Florida law tends to fall on the side of no-fault. A failure to provide support for a spouse (be it financial or otherwise) and/or children may weigh against a spouse during divorce proceedings; however, current legal precedent does not support using abandonment as a scorecard to determine how assets and debts accumulated during a marriage are divided between spouses.
Meaning, while proving marital fault may play a role in certain family law issues like alimony and child support, it has no bearing on property division. Even a spouse who has clearly failed to support the family during the marriage can only receive ‘her fair share’ of marital assets – which may amount to 50 percent if the jurisdiction is equally-divided. Florida’s statutory limitations on equitable distribution are laid out in section 61.075(6) of the Florida Statutes, which states: "In making equitable distribution of marital assets and liabilities, the court shall begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all of the relevant circumstances."
The only time abandonment may be considered is where it violates one spouse’s support rights or duties during the marriage. For example, the law might consider cutting the abandoned spouse out of inheritance rights to one another’s estate plan.
There are certainly valid reasons to adjust one spouse’s responsibilities toward the other depending on their marital conduct. Florida courts have previously held that the non-wage-earning spouse has a responsibility to identify and preserve marital assets.
Courts have even gone so far as to excuse a spouse from supporting one who is determined to be physically incapable of working due to mental illness.
Even when adultery and desertion could be considered legally relevant to issues of equitable distribution, these without having their own separate causes of action. The appropriate cause of action to use in cases of abandonment, adultery or other marital fault issues is dissolution of marriage based on irreconcilable differences. In such a case, "circumstantial evidence of marital misconduct may be relevant to the trial court’s determination of the equitable distribution of marital assets," according to the case of Jamison v. Jamison, 35 So. 3d 44 (Fla. 4th DCA 2009).

The Role of Child Custody and Child Support in Cases of Abandonment of Marriage

The impact of marriage abandonment on matters of child custody and support requires a discerning eye and a balanced approach. In Florida family law, the presumption guiding the application of the law is that the best interests of the children are of paramount importance. Unlike most matters in which two parents are fighting for custody and the rights of a parent to care for a child are derogated by the other parent, in abandonment cases, Florida courts’ interests are close to home. When a spouse has abandoned the other, especially when children are involved, the Florida courts have a greater obligation than ever to determine the best interests of the children and to create a custody arrangement that promotes those best interests.
Florida Statute 61.13 explains the guidelines sought when determining what the best interests of the child are. To put it simply, the court orders visitation, custody and shared parental times with the purpose of promoting all of the following concerns over the course of both parents’ lives:
It is important to note though that Florida courts do not favor any one parent over the other unless there is reason beyond the control of either parent that demonstrates to the court that one parent is not suitable for maintaining custody of or visitation rights with the children . The parent who abandoned the child may be at a disadvantage in some areas according to the court. However, this will only be taken into account if that abandonment has some negative impact on the child.
When the courts are determining whether to award time sharing, custody or support to either parent, the time passed after the abandonment will make a difference. If a parent was abandoned for an extended period of time-even indefinitely in some cases-and then came back to the child’s life seeking visitation and support, that time away from the child is going to be considered when deciding what is in the best interests of the child. Of course, in many cases, that parent has demonstrated a commitment to the child by providing away of assistance or financial support. However, if the contact with the child was intermittent or not as concerned as should be for an abandoned child, the court will probably prohibit that parent from full custody, visitation, time sharing or support.

Responding to Abandonment of Marriage Allegations

In the face of an abandonment claim, a spouse may have several potential defenses available to them to counteract the allegations. A spouse may file a petition for dissolution of marriage and allege abandonment as a ground for the divorce. There are three different reasons that would constitute abandonment: (1) submitting to the other spouses jurisdiction and return and not abandoning the home within one year; (2) voluntarily leaving an individual with the intent to abandon prior to the one year of the dissolution period; or (3) forceful evictions, abuse or cruel treatment within the context of an accusing spouse.
In context, prior to 1999, Abandonment was a very common ground for divorce. Today, since its removal in 1999, Abandonment is a very uncommon ground for divorce. Nevertheless, in the context of defending against an abandonment claim, Florida Statutes ยง 61.021 does not include a specific definition of abandonment. However, as with all grounds for divorce, case law can be very persuasive.
The Florida Second District Court ruled in the case of Goldman v. Goldman, that abandonment can be proven by showing that the wife repeatedly and unilaterally repudiated her obligations to the husband and refused to make reasonable accommodations for his social and economic happiness. The courts also have ruled that where one spouse must take action to obtain a divorce (e.g., file for a dissolution of marriage suit to obtain the divorce) it would make little sense to hold that the filing spouse to have abandoned the marriage.
In today’s world where it is common for both spouses to be working, abandonment versus dissipation could be the deciding factor of a contested dissolution. If a spouse is able to prove that the other spouse has intentionally dissipated marital assets then the facts in this case would be opposite of abandonment and thereby penalize the other spouse in the distribution of property. The courts have issued many pronouncements on the definition and scope of the term "waste" or dissipation of marital assets. See, e.g., Smith v. Smith, 827 So. 2d 1118 (Fla. 2d DCA); Boulanger v. Boulanger, 803 So. 2d 761 (Fla. 1st DCA), rev. granted, 816 So. 2d 109 (Fla. 2001); Brodie v. Brodie, 747 So. 2d 451 (Fla. 3d DCA 2000); Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992). In these cases, the courts have held that the spouse seeking the divorce should not profited from the other spouse having wasted marital assets but also have ruled that in a contested divorce, a spouse should not receive money for wasting marital assets and now facing the partition.

Seeking Legal Representation for Matters Involving the Abandonment of Marriage

If you have defiantly left your spouse and have not filed for divorce, or if you think your spouse is about to do the same, then you should consult with a legal professional as soon as possible. There are a number of reasons for this including: The above reasons highlight just some of the important matters that can arise from marriage abandonment in Florida. Your attorney will work to make sure your needs are met and that you are being protected under the law.
When you are choosing an attorney, it is important that you find someone who is experienced with issues related to family law. You can ask the attorney in your consultation about his or her experience in handling marriage abandonment law . Because circumstances for every case can be different, it is also a good idea to discuss your individual situation beforehand, to learn what your options are. There are a number of factors that can influence the cost of legal representation. Some of the factors that may figure into the costs include the complexity of your case, whether the case is more likely to be resolved through settlement or litigation, the attorney’s reputation and/or track record, and any and all fees charged by the attorney. In general, your lawyer will review these costs with you at the consultation, so you have a good understanding of what to expect.