Abandonment and Desertion in Divorce

When one spouse just up and leaves the marriage, the other may have a fault ground for divorce -- abandonment, which is also known as desertion, a term with very unfavorable connotation.

Abandonment means that one spouse has left the other without consent, but like adultery proving desertion means more than that a person left home without the consent of the other spouse. Most states require that the defendant or respondent left home for a year or more; that the parties failed to agree about the departure; that plaintiff or petitioner failed to pay support; and that the departure was not caused by the plaintiff or petitioner.

Many times spouses abandoned marriages because they could not get a divorce any other way. For example, at one time Ireland prohibited divorce, and unhappy spouses, unable to end a failed marriage, walked out, leaving abandoned wives and children in poverty. By abandoning their spouses, however, they got what the wanted: an escape from a bad marriage.

Abandonment is not the same as separation, trial or permanent, which in most cases happens as a preliminary to a divorce.

Like adultery, alleging desertion appeals to some spouses who seek a moral vindication because they can say, "He or she left, he or she does not pay, and I didn’t do anything wrong to make it happen."

The length of time of the abandonment varies from state to state, but usually it is a year or more. But reconciliations -- when the party who left returns only to depart again -- resets the clock.

A spouse who refuses to relocate if his or her spouse is transferred through work may have a major marital problem, but it is not abandonment for the spouse to refuse to move.

If someone leaves a marriage because the other spouse has made it impossible for the person to stay, the person leaving the marriage can claim constructive desertion, in that the other spouse made it intolerable to stay in the marriage. Constructive desertion happens when one partner causes the other partner to leave the marital home through misconduct. If one partner is forced to leave the home because the other’s misconduct, he or she has been constructively deserted. In this regime, the conduct of one spouse makes it impossible for the other to stay in the marriage.

Physical or mental cruelty to the spouse can constitute constructive desertion. Moreover, refusing sexual intercourse can often be held to be constructive desertion. In some cases, requiring a spouse to live with intrusive or abusive in-laws was held to be constructive desertion, as was refusing to relocate to a new town or state.

In the case of sexual relations, constructive abandonment means a spouse leaves the marriage in spirit by refusal to have sexual relations. In sexual desertion, which is considered a fault ground, the party charging it must prove abandonment, generally for one year, during which the spouses may share the same roof (but presumably not the same bed).

Constructive abandonment is a form of abandonment used as a ground for divorce, and it may also be considered a form of cruel and inhumane treatment.

Some years ago, a newspaper story described the marriage of an aging movie star and her husband. Though still legally married, he lived in one wing of their enormous house; she lived in the other, and they both entertained their separate and individual circles of friends in the common rooms on a reservation basis. This is probably a creative example of desertion, sexual and physical as well as by consent.

Without a doubt, constructive abandonment could be the grounds for divorce in many marriages where it is not used for obvious reasons. As grounds for fault divorce, sexual desertion means laying bare very personal details of two private lives.

When one person just walks about the door, but the separation is voluntary or mutual, the couple have separated; they have not divorced.

Just leaving by mutual agreement is not a divorce. An agreement to separate may be a preliminary for a no-fault divorce, but just leaving is not.

For example, when the husband and wife separate on a trial basis, both may agree to it, but a trial separation -- one sometimes undertaken to take stock of the marriage -- is not grounds for a divorce in itself.

Desertion must meet certain criteria, and most but not all states consider it a ground for divorce.

Desertion, like adultery, is a difficult route to divorce, and like adultery not used much. In general, most states require the plaintiff or petitioner, the party who is abandoned, prove that the defendant or respondent left the home for more than one year, did so without the agreement of the spouse, failed to pay support and that the reason for the departure was not caused by the plaintiff or petitioner. Abandonment or desertion means that neither the husband nor the wife refuse the duties and obligations associated with the marriage.

Some states have laws saying that if one spouse has moved out, it demonstrates an irretrievable breakdown of the marriage, sufficient for a divorce.

Abandonment is not the same as a woman fleeing domestic violence in a crisis, nor it is the same as a man announcing his intentions to divorce his wife and then moving out.

Like many facets of marital and family law, abandonment has two sides. As a strategy for coping with the domestic turmoil of a failed marriage, just leaving may have legal repercussions that weaken one’s case after he or she thinks better of it and decides to formally end the marriage. This is particularly true when there are children because it may be much more difficult for the person who left to make a strong case that he or she is a fit parent if he or she walked away for a significant period of time.

When a husband stays but doesn’t support the household at all, the marriage has broken down to the point where the spouses share a roof and nothing else. The two people live as ships passing in the night. One spouse pays for everything, and the other contributes nothing at all.

In some states one of the traditional grounds for divorce was nonsupport. In these states, a husband was required to support his wife. Some states still have this ground in the state statutes.



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