Abandonment

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Abandonment is a term that applies to a variety of areas of law. These areas include matrimonial law, civil procedure, and property

Matrimonial Law 

In matrimonial law, abandonment is a form of marital misconduct which occurs when one spouse brings the cohabitation to an end (1) without justification, (2) without consent, and (3) without intention of renewing the marital relationship. There is no abandonment if the separation of parties comes from a mutual agreement. 

In this context, abandonment has implications for trust and estates, as a decedent's spouse who abandoned the decedent is not entitled to an intestate share of the decedent's estate. The classic case of abandonment arises where one spouse simply leaves the marital abode without consent or justification. However, abandonment can also be established where one spouse forces another to be excluded, such as by changing the locks on the shared home. A defense to abandonment in matrimonial law is justification for the abandonment, such as misconduct by one spouse towards another that forces abandonment. 

Civil Procedure 

Abandonment in civil procedure refers to cases that are not actively being litigated. This doctrine is self-executing and applies when a period has passed without a step being taken without either party and is effective without a formal court order.  As such, in order to avoid a dismissal on the basis on abandonment, a plaintiff must satisfy three requirements: (1) the plaintiff must take steps towards their lawsuit; (2) the steps must be taken in the proceeding and appear in the record of the suit; and (3) the steps must be taken within the statutory period. The policy considerations of this doctrine aim to balance the rights of litigants to the courts and speedy and efficient resolution of litigation. Abandonment in the civil procedure context is most common in Louisiana, which has a statutory period of three years. However, other states have measures to give courts authority to dismiss abandoned actions as well. For example, in New York, the statutory period for abandoned cases is one year and shall be dismissed without needing a court order if not restored.   

Property

In property law, abandonment refers to the voluntary and intentional discarding of a known right (see Abandoned Property). Abandonment is a defense to conversion; therefore, a key inquiry and question of fact surrounding abandonment is the intention of the original owner, which can differentiate abandonment property from that which is lost or misplaced. For example, Illinois has held that abandonment of an easement can be found where nonuse of the easement is accompanied by acts which manifest an intention to abandon, therefore destroying the purpose for which the easement was established, such as an easement for a railroad that ceases to operate on the easement. 

Also, it should be noted that title to real estate, or a fee simple, cannot be lost by abandonment. Lastly, the finder of abandoned property generally has the right to possession, even against the owner of the premise where the abandoned property was found.

[Last updated in December of 2021 by the Wex Definitions Team]