Legal Question in Family Law in New Jersey
''Is leaving against my spouse's will considered dessertion?''
I have been married for 26 years have no children and we own a house. My husband has not been employed for most of our marriage. We have slept in separate bedrooms for at least 3 years now. I have wanted to leave him for at least the past 15 years but was concerned that he might end up homeless. Finally he decided to go to computer school and got a job one year ago. He refuses to get a divorce, to leave the house or to sell it. I have always paid the mortage, which comes directly out of my paycheck. I want to get a studio for myself, which is what I can afford, as I would continue to pay the mortgage. I then plan to serve him with divorce papers. If I do this, is it considered dessertion, and will it adversely affect me in the equitable distribution of joint property? I need to do this very soon for my sanity, as he is psychically abusive on occasion verbally abusive constantly. I would appreciate hearing from anyone who can clarify this for me. Thank you.
3 Answers from Attorneys
Re: ''Is leaving against my spouse's will considered dessertion?''
Thank you for your inquiry.
Your husband cannot prevent you from obtaining a divorce. Furthermore, your leaving the marital home should not effect your rights towards equitable distribution whatsoever.
It would be my pleasure to speak to you about your potential divorce. Accordingly, please feel free to contact my office at 732 246 0909 to discuss further.
Very truly yours,
Edward R. Weinstein
Re: ''Is leaving against my spouse's will considered dessertion?''
Leaving him could be technically desertion but yours sounds like a case of extreme cruelty by him. In any event, it will probably not make much of a difference to most judges.
You present an interesting set of facts that could allow for an adjustment favorable to you on equitable distribution depending on the proofs.
Make sure that you fully discuss your plan and the facts with your atorney BEFORE you take action. That way your strategy will be based on all the facts not just those in your note.
Good luck.
Barry Kozyra
Re: ''Is leaving against my spouse's will considered dessertion?''
While it could be considered desertion, a divorce claim for dsertion may be filed only after 12 months. You can file for divorce immediately on the basis of extreme cruelty, even though you still remain in the same house.
You may contact me for a free intitial consultation at 973-541-1500 or at [email protected].
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