Abandonment
The required elements of abandonment are (1) a voluntary separation of one spouse from the other, (2) with intent not to resume cohabitation, (3) without the consent of the other spouse, and (4) without justification. In cases where the spouse who departed later offers to return, the issue of intent not to resume cohabitation can become an issue that is litigated. New York Courts have said that for an offer to return to be considered bona fide, the offer must have been made within a reasonable time and must have been made in good faith.
A divorce on the grounds of abandonment will not be granted if the spouse who left was justified in doing so. If the reason the spouse left was another ground for divorce, such as adultery, it may not matter. However, in cases where the spouse left because of a genuine fear for his or her safety, it is possible that the spouse who left could effectively argue against a divorce based on abandonment.
In cases where the spouses, at least initially, began living apart by consent there is no abandonment, because abandonment requires that one spouse leave without the consent of the other.
