Understanding the Difference Between Family Abandonment and Home Abandonment in Divorce Proceedings

Family abandonment is a crime regulated and classified in the Penal Code . Those who are in charge of a minor or people with disabilities who need special protection incur this crime if they do not comply with their legal duties regarding them.

Home abandonment is  not the same as family abandonment.

In this article we will focus on family abandonment and home abandonment in the event of divorce .

In the face of a marital crisis, it is often thought that leaving the family home is a crime. This is a mistake. The fact of ceasing to live under the same roof does not constitute a crime of family abandonment.

What’s more, leaving the family home can be beneficial to face the divorce proceedings in a more relaxed environment.

Therefore, it is important that you know the difference between abandonment of home and abandonment of family.

Distinction between abandonment of home and abandonment of family

Stopping living under the same roof is not the same as abandoning family obligations.

  1. Abandonment of the home occurs when one of the spouses leaves the home that has been the family home.
  2. Family abandonment occurs when one of the spouses fails to comply with the welfare and maintenance obligations of the minors and the other spouse .
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Consequently, the spouse who stops living in the family home but continues to fulfill his or her duties towards his or her family does not incur a crime.

The spouse who leaves the family home and, in addition, does not attend to the welfare and economic needs of the minors and the other spouse, does commit a crime.

When is it NOT considered a crime of family abandonment ?

  • When the spouse who leaves the home and neglects his or her family obligations is a victim of gender violence or abuse .
  • When the spouse who leaves the home files a request for divorce , separation  or family measures within a period of 30 days.

In what cases can we say that we are facing a crime of family abandonment in the event of divorce? Below, we explain the two assumptions.

2 Cases of family abandonment in case of divorce

1. Failure to comply with the duties inherent to parental authority

The parent who does not fulfill the duties inherent to parental authority incurs the crime of abandoning the family.

These duties inherent to parental authority are the following:

  • Take care of minor or disabled children , keep them in your company, feed them, educate them and provide them with comprehensive training.
  • Represent and manage the assets of minor or incapacitated children.

In the case of divorce, one of the cases of family abandonment is school truancy (absence of the minor from school). The parent who, after many warnings from the school, voluntarily does not take the child to class may incur the crime of abandoning the family.

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What is the punishment for this failure? The parent who fails to comply with these duties will be punished with:

  • Prison sentence of 2 to 4 years.
  • Special disqualification for the exercise of the right of parental authority for a period of 4 to 10 years.

2. Failure to pay judicially agreed financial benefits

The most common case of family abandonment is the non-payment of pensions established in a judicially approved agreement or judicial resolution.

Within this assumption, two forms of family abandonment are distinguished.

  • Non -payment of   child support for 2 consecutive months or 4 non-consecutive months.
  • Non-payment of compensatory pension to the spouse for 2 consecutive months or 4 non-consecutive months.

What is the punishment for this failure ? In both cases, the perpetrator of the crime will be punished with: a prison sentence of 3 months to 1 year and a fine of 6 to 24 months.

How is the damage repaired? The only way to repair the damage caused is to pay the amounts owed.

Prosecution of the crime of family abandonment

In the aforementioned cases, family abandonment will only be pursued by the courts when the aggrieved person or their legal representative files a complaint.

Example: if the parent obligated to pay child support stops paying within the established deadlines, it will be the other parent who will file the complaint.

The crime may also be reported by the Public Prosecutor’s Office when it involves minors or disabled people.

Requirements of the crime of family abandonment

For a crime of family abandonment to exist, the following requirements must meet:

  • Omission of duties inherent to parental authority or failure to comply with financial obligations established by judicial resolution.
  • Voluntary failure to comply with said obligations. That is, the non-compliance is not due to an impossibility. Example: non-payment of pensions is considered a crime if the judge determines that the obligor does not pay because he does not want to, not because he cannot.
  • Persistent non-compliance . That is, it is not a delay in compliance or partial non-compliance.
  • Complete breach. That is, the family’s duties are completely breached.
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Get advice from expert family lawyers

In a case of abandonment of home or abandonment of family,  it is recommended that you put yourself in the hands of a lawyer specializing in family law .

Their extensive experience in cases similar to yours and their greater accumulated knowledge on the subject will help you  find the best possible solution for your interests in the breakup.

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