Jurisdiction:
Area of Law:
Question:
Selected Answer:
Submitted by DakotaLegal on
All Comments
Submitted by DakotaLegal on
The hope with giving any help or advice in a case such as this is to try and give you some pointers about both (a) short-term and (b) long-term steps. So, though we will talk about your question regarding ‘abandonment,’ we’ll also look briefly at some other important legal rights and legal steps to protect all your interests. I’m assuming that your primary interest in abandonment is to force him to meet his responsibilities financially. Realistically, though, abandonment in this sense probably means filing for divorce.
The biggest short-term worry is that without a clear custody order from a West Virginia court, your husband may try and take the children.
To begin with, abandonment is grounds for divorce in West Virginia. But abandonment is also grounds for a process called “separate maintenance” in West Virginia, which is often done (such as for religious reasons) to avoid filing for divorce, while establishing the abandoning spouse’s duties of financial support to you. http://www.lawv.net/system/files/ Family%20Law%20Updated%20 Adoption%20Grandparents%207-08.pdf. Yet, to get separate maintenance means having a fair amount of cooperation from the other spouse. Which gets us back to the likelihood of divorce (or reconciliation), and the need you have for immediate legal action or waiting for the WV statutory period of abandonment.
There are possible places to get high quality and affordable legal advice. This is going to be crucial in your case, because you need to weigh the legal advantage of waiting to prove “abandonment” with the possible risks of his coming back and attempting to re-enter your home. You may get free or low cost legal help, based on income: http://www.lawv.net/probono.
You may also have other grounds (violence or adultery, for example) for a divorce, which may make it unnecessary for you to stay with abandonment as the grounds you may want to use for divorce. Here is a good summary of the grounds for divorce in West Virginia: http://www.knox.army.mil/sja/documents/Adlaw/Divorce_West_Virginia.pdf.
The same group (Legal Aid of West Virginia) also has some very good information on the tactics of filing for divorce or separation. http://www.lawv.net/taxonomy/term/561.
SHORT TERM WORRY. Be very cautious right now, with the well-being and whereabouts of the kids. Because, until you take some specific legal steps, your children may be at risk of being taken without your consent by the father. One important fact, for example, is that abandonment (as we’re talking about it here) is a legal decision, reached by a court, with a chance for the other parent to admit, explain, or dispute the charge. Put another way, you will have to prove abandonment by having a court declare it. You cannot, even though it appears plainly to have happened, simply act as though you have been abandoned.
- What Exactly Is “Abandonment”?
To meet the West Virginia legal definition of a parent “abandoning” a family, there must usually be a passage of six months. http://law.justia.com/cases/west-virginia/supreme-court/1992/20154.html. You’re right around that time period now, so you seem to have a “prima fasciae” case of abandonment.
There can be exceptions to these charges of abandonment, though. There is some disagreement between West Virginia courts, for example, as to the result if you should cohabit again, or have intimate relations with your husband again. http://law.justia.com/ cases/west-virginia/supreme-court/1997/24034.html. So, next, let’s look at some specific examples and facts of what abandonment has been decided to be in West Virginia, and how that may fit into your longer range custody needs, too.
LONG TERM PRIORITY: Proving The Best Interests Of the Children
- Proving Abandonment In West Virginia
Showing abandonment of you, as a spouse can have important consequences. Your husband, for example, will be prevented from claiming alimony if you can show he abandoned you. Begin accumulating all the evidence you can, from grocery bills, credit card statements, mortgage payments, testimony of witnesses, as well as keeping a journal describing each day: nothing complicated or emotional---just the facts of abandonment, every day, for six months. If at any time during that period since Christmas, he makes a documentable effort to spend time with the kids, you will have a tough time proving abandonment. Also be ready to prove you did not prevent him from seeing the kids.
The hope with giving any help or advice in a case such as this is to try and give you some pointers about both (a) short-term and (b) long-term steps. So, though we will talk about your question regarding ‘abandonment,’ we’ll also look briefly at some other important legal rights and legal steps to protect all your interests. I’m assuming that your primary interest in abandonment is to force him to meet his responsibilities financially. Realistically, though, abandonment in this sense probably means filing for divorce.
The biggest short-term worry is that without a clear custody order from a West Virginia court, your husband may try and take the children.
To begin with, abandonment is grounds for divorce in West Virginia. But abandonment is also grounds for a process called “separate maintenance” in West Virginia, which is often done (such as for religious reasons) to avoid filing for divorce, while establishing the abandoning spouse’s duties of financial support to you. http://www.lawv.net/system/files/ Family%20Law%20Updated%20 Adoption%20Grandparents%207-08.pdf. Yet, to get separate maintenance means having a fair amount of cooperation from the other spouse. Which gets us back to the likelihood of divorce (or reconciliation), and the need you have for immediate legal action or waiting for the WV statutory period of abandonment.
There are possible places to get high quality and affordable legal advice. This is going to be crucial in your case, because you need to weigh the legal advantage of waiting to prove “abandonment” with the possible risks of his coming back and attempting to re-enter your home. You may get free or low cost legal help, based on income: http://www.lawv.net/probono.
You may also have other grounds (violence or adultery, for example) for a divorce, which may make it unnecessary for you to stay with abandonment as the grounds you may want to use for divorce. Here is a good summary of the grounds for divorce in West Virginia: http://www.knox.army.mil/sja/documents/Adlaw/Divorce_West_Virginia.pdf.
The same group (Legal Aid of West Virginia) also has some very good information on the tactics of filing for divorce or separation. http://www.lawv.net/taxonomy/term/561.
SHORT TERM WORRY. Be very cautious right now, with the well-being and whereabouts of the kids. Because, until you take some specific legal steps, your children may be at risk of being taken without your consent by the father. One important fact, for example, is that abandonment (as we’re talking about it here) is a legal decision, reached by a court, with a chance for the other parent to admit, explain, or dispute the charge. Put another way, you will have to prove abandonment by having a court declare it. You cannot, even though it appears plainly to have happened, simply act as though you have been abandoned.
To meet the West Virginia legal definition of a parent “abandoning” a family, there must usually be a passage of six months. http://law.justia.com/cases/west-virginia/supreme-court/1992/20154.html. You’re right around that time period now, so you seem to have a “prima fasciae” case of abandonment.
There can be exceptions to these charges of abandonment, though. There is some disagreement between West Virginia courts, for example, as to the result if you should cohabit again, or have intimate relations with your husband again. http://law.justia.com/ cases/west-virginia/supreme-court/1997/24034.html. So, next, let’s look at some specific examples and facts of what abandonment has been decided to be in West Virginia, and how that may fit into your longer range custody needs, too.
LONG TERM PRIORITY: Proving The Best Interests Of the Children
Showing abandonment of you, as a spouse can have important consequences. Your husband, for example, will be prevented from claiming alimony if you can show he abandoned you. Begin accumulating all the evidence you can, from grocery bills, credit card statements, mortgage payments, testimony of witnesses, as well as keeping a journal describing each day: nothing complicated or emotional---just the facts of abandonment, every day, for six months. If at any time during that period since Christmas, he makes a documentable effort to spend time with the kids, you will have a tough time proving abandonment. Also be ready to prove you did not prevent him from seeing the kids.