abandonment

Abandonment is a term that generally refers to a voluntary parting or the discarding of an object with no intent to return or reclaim the item. However, it varies in application across different areas of the law. These areas include family law , civil procedure , and real property (also known as land law).

Family Law

In family, or matrimonial law, abandonment (desertion) is a form of marital misconduct that occurs when one spouse brings the cohabitation to an end. Matrimonial abandonment is defined in Williams v. Williams , 130 N.Y. 193 as a “voluntary separation of one party from the other, without justification, and with the intention of not returning.”

The classic case of abandonment occurs when one spouse simply leaves the marital agreement without consent or justification. However, abandonment can also be established when one spouse forces another to be excluded, such as by changing the locks on the shared home. One defense to matrimonial abandonment is to justify the abandonment, such as by showing misconduct by one spouse toward another that forced the abandonment. There is no abandonment if the separation of parties comes from a mutual agreement.

Abandonment also 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 .

Civil Procedure

Abandonment in civil procedure refers to cases that are not actively being litigated . This doctrine is self-executing, meaning that it becomes effective immediately without any further action and applies when a period has passed with no steps taken by either party. It is effective without a formal court order .

To avoid dismissal due to 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 statute of limitations .

This doctrine's policy considerations aim to balance litigants' rights while maintaining the speedy and efficient resolution of litigation.

Abandonment in the civil procedure context is most common in Louisiana , which has a three-year statute of limitations. However, other states have measures to give courts authority to dismiss abandoned actions as well.

For instance, in New York , a case is considered abandoned when one year has elapsed since an abandoned clerk’s calendar call or its removal from the court calendar. Abandoned cases are dismissed for “neglect to prosecute.”

Property

In property law, abandonment refers to the voluntary and intentional discarding of a recognized property right (see Abandoned Property ). Abandonment can serve as a defense against conversion when one party is accused of taking the movable property or chattel of another. For instance, a chair left on the side of the road with a “free” sign would qualify as abandoned property, whereas a chair taken from someone’s front porch would constitute conversion.

The key question of fact surrounding abandonment is the intent of the original owner, which can differentiate abandonment property from that which is lost , misplaced, or stolen.

For instance, in Diaz v. Home Federal Savings & Loan Ass’n , an Illinois court ruled that abandonment of an easement (permission from a property owner to use their land for a specific purpose) can be established where the non-use of the easement is paired with actions indicating an intention to abandon, thereby undermining the purpose for which the easement was created. In this case, the court determined that a railroad’s cessation of operations on a specific piece of land, without any actions suggesting an intent to resume, qualified as abandonment.

The finder of abandoned property generally has the right to possession , even against the owner of the premise where the abandoned property was found.

It should be noted that title to real estate , or a fee simple , cannot be relinquished by abandonment.

[Last reviewed in March of 2025 by the Wex Definitions Team ]

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