If I take all my belongings out of my husband’s house, is that abandonment?

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If I take all my belongings out of my husband’s house, is that abandonment?

My husband and I got married 4 years ago. We have 15 month old twin boys. We decided to separate and I have been gradually taking my belongings out. If I take all my belongings out before we file for legal separation or for divorce, will this be considered abandonment? We split the custody right now for the kids until we speak to a mediator or attorney.

Asked on October 29, 2011 under Family Law, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

New York recognizes two types of "abandonment" grounds.  One is just called "abandonment" and one is called "constructive abandonment."  Abandonment consists of four elements: (a) voluntary separation of one spouse from the other (b) an intent not to resume cohabitation (c) lack of consent of the other spouse (d) no justification and it must be for one or more years.  When  your spouse has not physically left the house the courts use constructive abandonment instead which is (a) One spouse locks the other spouse out of the marital home (b) The actions of one spouse makes it impossible to live together (c) Lack of sexual relations. It sounds as if you two are separating amicably but I know that things can turn quickly from amiable to contested so I would try and seek legal help sooner rather than later.  And leave some stuff there.  Good luck. 


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