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.