In Pennsylvania, Can I Voluntarily Move Out Without “Abandoning” or “Deserting” My Spouse?

By Matthew T. Hovey, Esquire

Potential clients often call in and want to know: my marriage is over, but we still live together — can I move out or will that be abandonment or desertion?  This is a legitimate concern for many spouses faced with a divorce.  They fear being penalized for acknowledging that the marriage is over and wanting to move out to diffuse a tense situation at home.

The answer is no, it is not desertion or abandonment, as long as you move out in a responsible and respectful manner.  23 Pa.C.S. § 3301(a) enunciates the grounds for a “fault divorce.”  (a)(1) provides for a fault divorce when “the other spouse has committed willful and malicious desertion, and absence from the habitation of the injured and innocent spouse, without a reasonable cause, for the period of one or more years.”  Therefore, if you break that requirement down, in order to desert your spouse, you moving out of the house must be (1) on purpose (2) and malicious (3) and last at least one year (4) and there is no reasonable justification (e.g., abuse) for you moving out (5) and your spouse must be innocent of any wrongful conduct (e.g., affair, abuse, etc.).  Additionally, the Superior Court in Johnson v. Johnson, 171 A.2d 638, 641 (Pa. Super. 1961) made it clear that the relocation from the home must be continuous for the specified time period (at least one year) or the absence does not qualify as desertion or abandonment.  Thus, as long as you notify your spouse of your intentions, provide him or her with a contact number, and continue to fairly contribute to your marital financial obligations, you should not need to be concerned about desertion or abandonment with respect to your divorce proceedings.

If you intend to move out of the marital residence, however, it is strongly recommended that you consult with an attorney.  While your move may not qualify as desertion or abandonment, it may significantly impact other rights, such as spousal/child support and custodial rights, especially if you have children who you intend to relocate with you.  If you, a family member, or friend are considering moving out of the home shared with a spouse, please contact our office for a free initial consultation.

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5 Comments

Filed under Family Law

5 responses to “In Pennsylvania, Can I Voluntarily Move Out Without “Abandoning” or “Deserting” My Spouse?

  1. todd shawley

    Tents My soon to be x wife moved out on Oct. 1 of last year. Into an apartment which we were still having sex til a month ago I still live in the house that we bought which I paid for because my job left so I cashed out y 401k and paid the rest of it off she is now.suing me because her landlord says that the has to move out at the beginning of April. So I receives something from her lawyer that says that I have to move out immediately and she can move in and I have to move in qirh my parents but my

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  2. Tim Hercenberg

    My wife left on June 9 th of this year while I was in the hospital. She took as much as would fit in her car and is currently living in Fla. I have tried to make contact via social media but, she is blocking me. I don’t have any other way to contact her. Can I use abandonment law to my favor?

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  3. Clovies johnson

    Trying to find some information on a divorce in pa for a move out on a no fault claim

    Like

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