There comes a time in every divorce when a couple must physically separate. A divorce begins when one partner tells the other that she/he wants a divorce. There may be a plea from the non initiator, the one who is told, that they work on and try to save the marriage. Sometimes the marriage counseling that follows is successful. But in most cases there is no successful counseling and the divorce proceeds. Now the question arises, who is going to move out? Although that may prove to be a tortured debate, sooner or later one of the partners can no longer stand the tension and decides to move. Now what happens? Invariably one of the partners consults a lawyer and is told not to move. If you move, says the lawyer, you open yourself up to the charge of abandonment or desertion for which you could be punished at trial. So don’t move. If the client follows this advice and if the client’s spouse gets and follows similar advice, the two become locked in the same house for months and even years with emotional consequences that are dreadful for everyone concerned.
The Reality: There are no such consequences if one of the partners moves out.
In almost forty years of practice I have been aware of thousands of divorces in which one of the parties moves out. I have never heard of a single case in which the couple went to trial on the issue of abandonment with a punitive consequence for moving. Not a single case. Yet, many if not most divorce lawyers insist on giving this advice to their clients. Lawyers as a profession have little interest or knowledge of statistics, so I am not surprised that they continue to give bad advice. Lawyers as a profession also have little knowledge or interest in the psychological consequences of their advice. So they remain blissfully ignorant of the problems they cause.
There are several reasons for the persistence of bad advice. Although 99% of divorces are settled without a trial, lawyers are trained to prepare for a trial in every case. The lawyer says that he has no way to be sure that the case will settle before trial. If the law provides that a spouse who abandons can be punished by the judge, how can the lawyer not warn the client not to leave? Although this may be technically true, in practical terms it is totally untrue. One of the reasons only one percent of divorces go to trial is that only one percent of the population can afford the six figure legal fees required to try most cases. That means that unless you are very rich, you are not going to trial. And it is only at trial that the issue could even be raised. But what happens even in those few cases?
With the exception of infidelity cases in a few states, almost no divorces are tried on issues of grounds. Generally trials occur over money, and less frequently, custody. And the only issue in which the outcome could be affected if abandonment were to be proved is alimony. Presumably, alimony can be enhanced or denied based on bad behavior if the judge is so inclined. But most judges are sufficiently sophisticated enough that they know that if the marriage is dead, someone ought to leave. They have seen enough domestic violence cases to understand the dangers inherent in two divorcing people clinging to the same residence. So what are the chances that you will be accused of abandonment, taken to trial and punished? Only about 15% of divorces involve alimony. That means that there is a 1% probability of trial with only 15% of those involving alimony. So the probability of both is 0.15%. This is further reduced because only a few of these would occur before a judge who was inclined to punish. By the time you do the arithmetic the real probability of all these events happening if less than one in a thousand. And in my career, I have never seen it happen even once.
If a lawyer or misguided friend gives you this advice please review this blog again. The harm that can arise by refusing to separate is great. The harm that will come from moving out is so small that it is for all practical purposes nonexistent.