Skip to main content

My Wife left our apartment with her daughter and found a new man and is staying with him. Can I file abandonment?

Deer Park, NY |

What would I need to start the process?

+ Read More

Attorney answers 9


You can file for divorce on the fault basis of abandonment if she is gone for a period of one year. If you do not want to wait one year, you can file for divorce under the NY no fault statute.


You can - but it's probably not in your interest. Consult a local divorce attorney and work out a grounds on which you'll have a lower need for proof (like irreconcilable breakdown).

Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer could be considered attorney advertising.


Only if has been a year since she abandoned the marital residence (and it was unjustified). Otherwise it might be more practical to select a different grounds such as "irretrievable breakdown" of the marital relationship. Contact an attorney to start the process or call for more information.

Please note that this general response to your inquiry does not establish an attorney-client relationship.You should consult with a competent attorney for advice regarding your particular situation.


If it's been at least a year since she left, you can get a divorce on the ground of abandonment. the abandonment would have had to continue for one year without interruption. However, as of 2010, New York adopted a no-fault divorce provision called "irretrievable breakdown" of the marriage. It is virtually impossible for your wife to contest this ground. I


Firstly, is "her daughter" from a prior relationship or is it your daughter as well? This will make a difference as to how aggressive a strategy you wish to pursue. It is best to discuss your options with an attorney.


Speak to an experienced divorce lawyer before doing anything. Under DRL 170 (7) you can file for irretrievable breakdown of a marital relationship immediately for a divorce instead of waiting for a year from the abandonment. It is easier to prove and less to fight about and waste money. If it is your daughter you may have a relocation or custody case. Speak with a lawyer and keep it simple and less costly.

If this answer is helpful, then please mark the helpful button. If this is the best answer, then please indicate it. Thanks. For further information you should see an attorney and discuss the matter completely. If you are in the New York City area, then you can reach me during normal business hours at 718 329 9500 or


Abandonment for a year is a ground for divorce, but recent changes in the law make "grounds" unnecessary. The important thing to know is that "grounds for divorce" do not effect the distribution of property or the issuance of maintenance or child support. I am assuming that when you say "her daughter", the child is not yours. If she is your daughter, immediate steps can be taken to protect your parental right to custody and/or parenting time.


In order for someone to proceed on grounds of abandonment the abandonment must have been for one or more years prior to the commencement of an action. An alternative may be cruel and inhuman treatment of the person claiming the abandonment.


To file for divorce under abandonment, she must be gone for a period of one year with no intent to return and you must have repeatedly asked her to return and she declined. You should file for divorce under irretrievable breakdown. Hire an attorney to file a Summons and Complaint and have her served.

Get Avvo’s 10-part divorce email series

A weekly guide with tips and legal advice for each stage of the process.

Divorce topics

Recommended articles about Divorce

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer