What Is Desertion
Desertion is a fault-based ground for divorce where one spouse abandons the other without consent or justification for a continuous period. The abandoned spouse must prove the departure was willful, the abandonment lasted the minimum duration set by state law, and there was no reasonable cause for the departure.
State-Specific Requirements
Desertion laws vary significantly by state. Most jurisdictions require the abandonment to last between 6 months and 2 years continuously. Key requirements include:
- North Carolina, South Carolina, and Virginia: Require 1 year of continuous desertion to file on this ground.
- Delaware, Georgia, and Mississippi: Require 6 months of abandonment.
- Pennsylvania: Requires 1 year of separation or willful abandonment for 1 year.
- New York: Requires the abandoning spouse to cease all cohabitation and refuse to resume marital relations for 1 year.
- California, Florida, and Texas: No-fault states where desertion is not a recognized ground, though the abandonment may affect custody or support determinations.
The key distinction is whether you must file during the abandonment period or afterward, and whether the state accepts only absolute desertion or conditional desertion (where the spouse leaves due to the other spouse's cruel treatment).
Impact on Custody, Support, and Property Division
Filing on desertion grounds affects your case differently depending on your state:
- Spousal Support: In fault-based states, the abandoned spouse may be entitled to higher alimony awards. Some courts reduce or eliminate support to the deserting spouse, while others remain neutral on fault.
- Child Custody: Desertion itself rarely determines custody outcomes in modern family law. Courts prioritize the best interests of the child standard. However, abandonment may indicate a parent's lack of involvement or commitment, which can influence decisions about primary custody arrangements and parenting time.
- Property Division: Fault grounds like desertion can affect equitable distribution in some states. Courts in North Carolina, South Carolina, and Virginia may award a larger share of marital property to the innocent spouse.
Proving Desertion in Court
You must establish four elements to succeed on a desertion claim:
- The spouse actually departed the marital home or abandoned marital cohabitation.
- The departure was willful, not due to legal separation agreement, medical emergency, or job relocation the other spouse accepted.
- The required continuous period has elapsed without reconciliation attempts accepted by the defendant.
- There was no reasonable cause for the departure, such as domestic abuse that justified leaving.
Documentation needed includes utility records, witness testimony, landlord statements, or communications showing the departure date and the other spouse's statements about their intentions.
Common Questions
- Does temporary separation count as desertion? No. The spouse must abandon the relationship entirely without intent to return and without the other spouse's consent. Brief separations or those agreed to by both parties do not qualify, even if they exceed the state's required timeline.
- Can I file for desertion if my spouse left for military service or a job? Generally, no. If the departure was authorized or you accepted the separation, courts typically find it does not constitute willful desertion. You would need evidence the spouse intended permanent abandonment without your agreement.
- Does desertion affect child support calculations? Direct child support calculations typically use income formulas that ignore fault. However, the abandonment may influence discretionary deviations and custody arrangements, which indirectly affect support amounts or custody expenses.