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Marital Abandonment In Illinois Explained

Updated on
November 12, 2020
Article written by
Attorney Kevin O'Flaherty

In this article, we discuss marital abandonment in Illinois and answer the following questions,


  • What constitutes marital abandonment in Illinois?
  • How does abandonment affect a divorce In Illinois?
  • How can I avoid claims of abandonment from my spouse?


It's not uncommon for married couples to get into a heated argument, resulting in one spouse leaving without communicating where they are going and when they will return. But at what point might it be considered marital abandonment? And is marital abandonment automatically cause for divorce? While it may not be the most common reason for divorce, marital abandonment is still a genuine and serious reason couples get separated. 


What Constitutes Marital Abandonment In Illinois?


Marital abandonment occurs when one spouse willfully leaves his or her family and fails to provide financial, emotional, or physical support in any way. It is synonymous with the term "willful desertion" in at-fault divorce states. Claiming abandonment as a reason when seeking an at-fault divorce is rare as it requires that the spouse who left be gone for at least one year, provide no financial support while gone, and give no indications as to his or her whereabouts. 


Abandonment is broken down further into at least two different categories:


  1. Criminal Abandonment. Criminal abandonment occurs when one spouse refuses to provide care, financial support, and protection for a terminally ill or incapacitated spouse or child without just cause. In some states, this is a cause for divorce and is also known as criminal desertion.
  2. Constructive Abandonment. Constructive abandonment occurs when someone severs all ties with their spouse because the non-leaving spouse made conditions unbearable for the leaving spouse. The leaving spouse can cite any number of reasons. Still, most common include physical or emotional abuse, creating an unsafe environment, and even refusal to engage in sexual intercourse without just cause. 


How Does Abandonment Affect A Divorce In Illinois?


Because Illinois is a no-fault divorce state, a claim of abandonment, criminal or constructive, will have no legal impact on the separation of property, calculation of alimony, and many other aspects of the divorce. However, when considering child custody, the judge will likely take into account a claim of abandonment. Because the judge must award custody based on the child's best interests, allegations of abandonment may cause the judge to question the abandoning parent's ability to provide a stable and supportive environment for the child. 


How Can I Avoid Claims Of Abandonment From My Spouse?

If you live in Illinois and feel that your marriage is headed for divorce, the first thing you should do is consult a divorce attorney. An attorney can explain what actions to take before the divorce and how you can avoid mistakes that may negatively impact you during the divorce proceedings. Second, if you must remove yourself from your current situation, make sure your spouse still has the means to contact you. In most instances, your phone number will suffice. Failure to consider their needs when leaving will reflect poorly on you during the divorce proceedings if you have children. 


Remember, Illinois is a no-fault divorce state. You don't need a reason to ask your spouse for a divorce. If you're in an abusive relationship, whether it's mental, physical, or financial abuse, taking immediate action by contacting an attorney should be your first step. The attorney can help you work through this challenging transition and explain how to protect yourself and your family.


Marital Abandonment In Illinois Explained
Author

Attorney Kevin O'Flaherty

Kevin O’Flaherty is a graduate of the University of Iowa and Chicago-Kent College of Law. He has experience in litigation, estate planning, bankruptcy, real estate, and comprehensive business representation.

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