At its best, marriage is a permanent partnership between two people who love each other. In the eyes of the law, marriage is also a civil contract that requires a license, witnesses, and registration with the state. When either spouse decides to end the partnership, he or she usually files for divorce, and the family court system helps determine issues related to distribution of assets, spousal support, and custody.

However, sometimes a spouse chooses to leave the marital home, stop fulfilling reasonable responsibilities and duties to the family, and, in some cases, cease all contact instead of filing for divorce and ending the marital contract in family court. Known as spousal abandonment, this type of behavior can have devastating effects on a family.

Types of Spousal Abandonment

There are several types of spousal abandonment, including:

• Criminal – withdrawing necessary financial support and refusing to provide for the care of a dependent spouse or minors without just cause
• Constructive – creating a hostile or unbearable marital environment (g., through domestic abuse, infidelity, withholding assets, etc.), giving their spouse a justifiable reason to leave
• Emotional – completely disregarding a spouse’s feelings or emotional needs

It’s important to note that simply moving out of a shared home does not necessarily qualify as spousal abandonment. As long as the spouse in question continues to provide financial and other support and does not sever all ties with the family, there is no case for marital abandonment.

Spousal Abandonment in California

Since California is a no-fault divorce state, the court system does not recognize spousal abandonment as grounds for divorce, so you would not need to provide evidence of abandonment. Instead, you would likely cite “irreconcilable differences” as your reason for filing, which allows you to move forward quickly with your divorce.

Although spousal abandonment will not affect the divorce filing, the California family court would most likely take it into consideration throughout the divorce process when considering custody, alimony, and property division.

How Spousal Abandonment Affects Divorce in California

When filing for divorce, California requires you to make a good faith effort to locate your spouse and serve divorce papers to inform them of your intent. If your spouse has abandoned you, however, the court might approve alternative means, such as publishing a notice in a newspaper, to serve a spouse who cannot be found.

During the divorce proceedings, a judge might consider spousal abandonment when determining:

• Spousal support – your spouse may be required to pay you alimony as a result of their actions.
• Division of marital estate – you may be eligible to receive a greater share of marital assets, and/or your spouse may be obligated to repay a more significant portion of shared marital debt.
• Child custody and visitation rights – your spouse might receive only minimal visitation rights or may lose parental rights altogether and might be compelled to pay you a greater amount of child support.

We Will Fight For You

If you are the victim of spousal abandonment and considering divorce, it’s important to have someone on your side to help you navigate the California family court system, especially in this complicated situation. At Lonich Patton Ehrlich Policastri we have been helping clients protect their rights and best interests in divorce cases for decades. Please contact us at 408-553-0801 or fill out our online form here for a free, 30-minute consultation to discuss your case and your options. Let us fight on your behalf.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

When a couple is getting a divorce, important decisions can become complicated, especially if there are children involved. Child custody requires extensive planning and forethought. In a typical child custody case, the courts look into a variety of things regarding both parents in order to make a decision that is focused on what is best for the child (or children). Both parents are involved in making this decision. However, there is a circumstance known as an ex parte custody order, which allows for court proceedings involving only one parent or guardian to take place without notifying the other.

What is an ex parte custody order?

An ex parte custody order happens when one parent files a legal document with the court in order to get custody of the child, without notifying the other parent of what is happening. Ex parte requests are reserved for imminent and dire emergencies. Some examples of what the courts consider an emergency are situations where the child is at risk of being abducted by the other parent or is suffering from mental or physical abuse. Requesting an ex parte custody order essentially means you formally ask the judge to make a decision immediately, regardless of the other cases the judge had scheduled for that day. Ex parte requests should be reserved for the most utmost emergencies, where the well being of the child is in real danger. If you are confident that the situation requires immediate action and an ex parte custody order is the course of action you need to take, then you need to make sure your homework is done so you can act swiftly and efficiently.

What to do before, during, and after the hearing.

In an average child custody case, both parties are aware of the court date and all of the details. In an ex parte case, one party files the required documents known as “pleadings”, with the assistance of an attorney. The most crucial part of this step is to make sure you have an attorney well versed in family law and knowledgeable on ex parte cases. Since courts in the same state can be very different from one another, make sure your attorney is familiar with the specific court you will be appearing at. Doing your homework is vital. When you arrive at court, sometimes they will have already made a decision based on your pleadings alone. Occasionally, they will want to hear an oral argument from the petitioning party. After the hearing, the ruling will be made in writing.

Here at Lonich Patton Ehrlich Policastri, we understand the importance of settling child custody cases amicably. We have a strong reputation in San Jose and Santa Clara when it comes to helping families with custody cases of all kinds. Contact us today at 408-553-0801 or fill out the form here for a free 30 minute consultation, and allow one of our experienced attorneys to help guide you in the next steps to take for your family.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.