Mayes v. Mayes

743 So. 2d 1257, 1999 La. App. LEXIS 3122, 98 2228 (La.App. 1 Cir. 11/05/99)

 

RULE:

Where one spouse unilaterally decides to leave the marital domicile, and subsequently refuses to return, the separation is either for lawful cause or it is abandonment.

FACTS:

Jeri and Tom were married with two children, and later divorced. Because the divorce was granted on the basis of Louisiana Civil Code, the fault of either party was not an issue. The trial court entered judgements for child custody and support in accord with the stipulations of the parties and a trial was held on Jeri’s request for permanent alimony. The court stated she was without fault in the breakup of the marriage and awarded her $450 a month in alimony. Tom contends the trial court erred in finding Jeri free from fault, because she caused the divorce by abandoning him and the marital domicile without lawful cause.

ISSUE:

Was a wife leaving her husband considered abandonment where he did not adequately attempt to gain her return?

ANSWER:

No.

CONCLUSION:

Where one spouse unilaterally decides to leave the marital domicile, and subsequently refuses to return, the separation is either for lawful cause or it is abandonment. Here, the third element of abandonment was not met because the leaving spouse needs to have constantly refused to return. Neither party tried to put the marriage back together and Tom never contacted her to talk about it. Her action does not rise to the level of fault which would preclude her from obtaining permanent alimony.

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