| Abandonment |
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.
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