Abandonment Law and Legal Definition
Abandonment in legal terminology may involve different matters and therefore have different meanings. Examples include:
Abandoned personal property and the laws governing how to property dispose of same or how to make a bona fide attempt to locate the owner before disposal. Abandoned personal property is that to which the owner has voluntarily relinquished all right, title, claim and possession, with the intention of terminating his ownership, but without vesting ownership in any other person, and without the intention of reclaiming any future rights therein, such as reclaiming future possession or resuming ownership, possession, or enjoyment of the property.
Abandoned trademark rights refer to a lack of a bona fide commercial use of a trademark for a certain length of time so that the exclusive rights of use of the trademark are relinquished and another may adopt the mark or use such abandonment as a defense to a claim or infringement, unfair competition, or dilution by a trademark owner.
Abandonment also applies to the husband/wife or parent/child relationship, when a person has severed ties with and failed to provide support to the other related person for such length of time to find that the familial relationship ceases to exist legally, in order to pursue criminal charges, annulment, divorce, adoption, or emancipation. In fault divorce states, a party guilty of abandonment may be found at fault, constituting grounds for a divorce, which may be a factor in property division, support, and custody issues. However, merely moving out of a marital home, particularly to a nearby location, does not constitute a fault ground of abandonment. Statutes don't necessarily provide a time period to define abandonment, but often base the finding of abandonment on evidence of an intention not to return.
Abandonment is also used in bankruptcy law to define what property constitutes the estate of the debtor to be administered by the trustee. Property of the estate may be abandoned at the instigation of the trustee if it is of inconsequential value and benefit to the estate. This method of abandonment has been referred to as "proposed abandonment." Property of the estate may be abandoned pursuant to a request by a party in interest for an order of the Bankruptcy Court directing the trustee to abandon property when such property is burdensome to the estate or that is of inconsequential value and benefit to the estate. This method of abandonment has been referred to as "compelled abandonment." Also, all scheduled property which remains unadministered upon closing of the case is deemed abandoned from the estate and regarded as administered for purposes of closing and reopening the case. This final method of abandonment has been referred to as "deemed abandonment."
In another context, abandonment is a process by which the court releases property from its control. This occurs when property of the estate is of little or no value to the estate. If the debtor's real estate is worth less than the mortgages against it, the trustee may "abandon" the property rather than administer it. If a debtor in bankruptcy reaffirms the mortgage of a property to remain liable for the debt, the property may need to be abandoned by the trustees so that it is not sold or otherwise administered under bankruptcy procedures.
For contract law purposes, abandonment is of a contract by mutual consent is held to be effective to discharge its obligations, even where a new contract containing one or more of the same term is simultaneously entered into. Such abandonment terminates or discharges the contract for purposes of further performance, but keeps it alive for the purposes of bringing an action and measuring the recovery. The primary right to further performance of the promise is discharged and is replaced by a remedial right to damages. The duty of the injured party to perform his own promise is also discharged.
The loss of rights invokes the term abandonment in many other applications of the law, generally involving the failure to pursue legal rights or fulfill legal obligations leading to relinquishing one's claim to an interest in a thing or a legal right.
For example, abandonment in some states consists of the following four elements:
- "Departure from the marital residence."
- "Without the intent to return." This means a permanent departure. It is not a temporary separation, such as one due to military orders.
- "Without the consent of the other spouse."
- "Without legal justification or excuse." This means that the defendant left without a good reason. What is a good reason? The law does not specifically define how substantial the excuse or provocation must be in order to justify departure from the marital residence.
One state law provides as follows:
Notwithstanding the provisions of subsection (a) of this section, a spouse who abandons his or her spouse without cause shall be liable for the reasonable support of such other spouse while abandoned.
State laws vary, so local laws should be consulted for applicability in your area.
The following is an example of a state statute governing abandoned property:
" Section 8. If such property remains unclaimed in the possession of such police department or member thereof for one month and the owner thereof or his place of abode or business is unknown, or if the owner and his place of abode or business are known and the owner, after receipt by registered mail of a written notice from such department or member to take possession of said property, refuses or fails for a period of ten days following said receipt so to do, such department may sell the same, excepting money unclaimed, by public auction, notice of the time and place of sale, with a description of the property to be sold, first being given by publishing the same once in each of three successive weeks in a newspaper published in such city. Any violation of the provisions of this section shall be punished by a fine of not less than fifty nor more than one hundred dollars and by forfeiture of any such property obtained as a result of such violation."
The following is a Michigan criminal family abandonment statute:
Desertion, abandonment, or refusal or neglect to provide shelter, food, care, and clothing; felony; penalty; bond; probation; failure to comply with conditions in bond; forfeiture of bond; disposition of sums received; continuing offense; proof.
"Sec. 161.
- (1) A person who deserts and abandons his or her spouse or deserts and abandons his or her children under 17 years of age, without providing necessary and proper shelter, food, care, and clothing for them, and a person who being of sufficient ability fails, neglects, or refuses to provide necessary and proper shelter, food, care, and clothing for his or her spouse or his or her children under 17 years of age, is guilty of a felony, punishable by imprisonment in a state correctional facility for not less than 1 year and not more than 3 years, or by imprisonment in the county jail for not less than 3 months and not more than 1 year.
- (2) If at any time before sentence the defendant enters into bond to the people of the state of Michigan in such penal sum for such term and with such surety or sureties as may be fixed by the court, conditioned that he or she will furnish his or her spouse and children with necessary and proper shelter, food, care, and clothing, or will pay to the clerk of the court, or other designated person, such sums of money at such times as the court shall order to be used to provide food, shelter, and clothing for his or her spouse and children, or either of them, then the court may make an order placing the defendant in charge of a probation officer. The court may require that the defendant shall from time to time report to the probation officer as provided by law. The court may extend the period of probation from time to time or the court may defer sentence in the cause, but no term of any bond or any probation period shall exceed the maximum term of imprisonment as provided for in this section.
- (3) Upon failure of the defendant to comply with any of the conditions contained in the bond, the defendant may be ordered to appear before the court and show cause why sentence should not be imposed, whereupon the court may pass sentence, or for good cause shown may modify the order and further defer sentence as may be just and proper. Whenever the whereabouts of the defendant is unknown, the court may summarily issue a bench warrant for the arrest of the defendant.
- (4) The court, upon default by the defendant to comply with the conditions of the bond and the orders of the court, shall notify the prosecuting attorney, who shall immediately file a petition in the court in which the cause is pending to declare the bond forfeited. A copy of the petition and a notice of hearing on the petition shall be served upon the surety or sureties, if any, named in the bond at least 4 days before the hearing of the petition. Upon holding a hearing on the petition, the court may declare the bond forfeited. When so ordered, the prosecuting attorney shall immediately institute the necessary action to collect the principal sum of the bond. If a cash bond has been filed, the cash bond shall be declared forfeited by the court.
- (5) All sums received from bonds being forfeited shall be paid to the clerk of the court, who shall hold and disburse the money for the use of those entitled to the money in accordance with the orders of the court for their necessary food, care, shelter, and clothing.
- (6) Desertion, abandonment, or refusal or neglect to provide necessary and proper shelter, food, care, and clothing as provided in this section shall be considered to be a continuing offense and may be so set out in any complaint or information. Proof of the offense charged at any time during the period alleged in the complaint or information shall be considered proof of a violation of this section."
