I am a divorce lawyer. My office is located in Auburn Hills, Oakland County, Michigan, close to Rochester and easily accessible to Troy, Birmingham, Clarkston and Holly. Once in a while someone will ask me a question about whether he or she might be considered guilty of abandonment and how that might affect a divorce. When it comes to divorces, abandonment is no longer a meaningful legal term (ones actions might be considered with regards to alimony or property division – but it does not mean that someone forfeits his or her rights to the marital estate because of willful absence) however, I recently read a case where a plaintiff tried to use the legal concept of abandonment to stop a wife from inheriting her husband's estate in probate court, it did not work.
In the matter of Lovett v Peterson, COA 326017, May 24, 2016 (For Publication), the husband (Lyle) predeceased the wife (Arbutus). Lyle's daughter from a previous relationship tried to have Arbutus disqualified as a surviving spouse under the abandonment provisions of the estate code because she was “willfully absent” from him for one year or more before his death. The court determined that Lyle and Arbutus married in 1959 and ran a store in Phoenix, Michigan. The store also had living quarters above it. Lyle had affairs during the marriage, one that started in the 90s with Susan Strieter and continued to his death. Yet despite Lyle's affairs Arbutus did not change the way she treated Lyle as a husband. In 2007, Lyle moved into a home with Strieter but even after moving away Lyle continued to visit the store and interact and eat with Arbutus. Lyle eventually became ill with dementia, Arbutus last saw him in 2009 and he passed away in 2011.
The court determined that it would focus on Arbutus's specific actions and intent regarding the abandonment of the marriage. The court reasonably found that the Legislature did not intend to require a deserted or abandoned spouse to make a continuous effort to restore cohabitation or risk being deemed to have been willfully absent. In this case, Lyle absented himself from Arbutus and Arbutus remained faithful to the marriage, nothing in the law requires an innocent spouse to repeatedly attempt to reconcile against his or her spouse's wishes. Arbutus's decision to acquiesce to Lyle's wishes was not sufficient to establish that she was willfully absent from Lyle under the probate abandonment statute.
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