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Desertion, known in some states as abandonment, is considered grounds for divorce in states that have fault divorces. There are two types of desertion, actual desertion and constructive desertion. Both types of desertion must be continuous and uninterrupted for a specific period of time between one and five years depending on the state.

The most obvious situation which would constitute desertion is when one spouse leaves without a trace, never comes back and never again makes contact. However, there are other situations which constitute desertion.

Desertion vs. separation
Desertion is not the same as separation. In a separation both spouses consent to living apart. Desertion only occurs when one spouse does not consent to the separation.

The necessary elements to establish desertion include:

  • No longer living in the same residence
  • No longer having sexual relations
  • Deserting spouse intends to end the marriage
  • Deserting spouse was not justified in leaving the residence
  • Deserted spouse did not consent to the desertion
  • Desertion has been continuous and uninterrupted for the amount of time designated by law in your state

Actual desertion vs. constructive desertion
In actual desertion the deserting spouse leave the home. Constructive desertion occurs when the deserted spouse leaves due to unbearable conditions at home caused by the other spouse. Combined with the above elements of desertion, depending on the state, conditions for constructive desertion can include:

  • Physical abuse
  • Mental cruelty
  • Adultery
  • Nonsupport
  • Unjustified refusal to have sexual relations for a significant period of time
  • Knowing transmission of a venereal disease

Couples contemplating divorce should be cautious about moving out of the residence in a manner which can be claimed as desertion. To avoid a claim of desertion both parties must agree to the separation and should provide each other with contact information.

The desertion period must be continuous and uninterrupted. One night spent under the same roof or one meeting for sexual relations can be considered an interruption in the desertion period, and the required length of time would start over after that date.

Unintentional abandonment is not considered desertion. If a spouse goes missing for a specified period of time, and efforts to find the spouse are unfruitful, the abandoned spouse may obtain a divorce. However, situations such as military personnel missing in action do not constitute desertion.

If you are facing or contemplating divorce, have been forced out of your home or have been abandoned by your spouse, contact an experienced divorce attorney today.

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