How Do I Prove Desertion?

One may obtain a limited divorce on the ground of “desertion”, which is sometimes called “abandonment”. For limited-divorce purposes, desertion requires that there be an unjustified and deliberate act by one spouse to abandon the other, either by leaving the residence or by creating an intolerable condition that forces the other to leave the residence.

One may also obtain an absolute divorce on the ground of “desertion.” In order to obtain an absolute divorce on this ground, in addition to the above conditions, the desertion must exist without interruption for at least one year prior to filing the complaint for absolute divorce. Finally, there must be no reasonable expectation that the parties will reconcile.

I should emphasize that the conduct must be unjustified to constitute desertion. If one is justified in leaving or forcing the other out, then such conduct does not constitute desertion. Justification must consist either of the existence of another ground for divorce OR conduct by the other spouse that creates an intolerable living condition or otherwise renders continuation of the marital relationship impossible. Obviously, physical abuse would most likely constitute conduct that creates an intolerable living condition and that justifies the other party in leaving or in forcing the other spouse to leave. Many other examples may also exist.

In addition, desertion requires the absence of consent of the party being deserted. If one spouse consents to the other spouse’s leaving, then such leaving does not constitute desertion.

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