Family Desertion

DESERTION IS A LEGAL term that describes an aspect of family law. In some states, it is called abandonment. Specifically it describes a violation of domestic relations. It is the abandonment or renunciation of marital relations and obligations without cause or legal justification with no intention to return (animus revertendi).

Desertion can be an act by either spouse. It is an act of abandonment without any intention to resume relations. The party deserting does so without the consent of the other party to the marriage. The desertion constitutes wrongful conduct on the part of the party deserting his or her spouse. Unintentional desertion is not grounds for a divorce. Military personnel captured and held prisoner are not viewed as having willingly engaged in desertion. Marriage is usually viewed by the state as a contract. Desertion violates the marriage contract.

In the context of poverty, family desertion and the reulting loss of income can move a family that might have been on the edge of being poor over the line into outright poverty. The law of desertion varies among the states in the United States and around the world. In [Page 344]some jurisdictions a year's absence is sufficient to establish grounds for divorce. The aggrieved spouse usually shows an absence of more than a year and a day. In other jurisdictions it takes up to five years.

Desertion requires that the desertion party willfully choose to be absent from the marital relationship for at least a year. In a divorce that follows desertion, the aggrieved party may be required to show that the desertion was not caused or provoked by the party left behind. Desertion is one of a number of grounds for divorce. Normally it is not a criminal act, but a civil harm that permits the aggrieved spouse to have grounds for divorce. However, desertion can be criminal if the abandonment occurred as a willful failure to provide for a spouse who was gravely ill or in very necessitous circumstances. Creation of legal grounds for divorce does not address the emotional trauma that is so commonly experienced. Nor does it address the financial difficulties that may be incurred.

Desertion can also occur legally even if the person deserting continues to send financial support. Moreover desertion cannot be established if the party who left was thrown out of the home. Desertion does not occur if the deserting spouse flees the marital relationship because of the other spouse's behavior. However, constructive desertion occurs when one spouse makes life intolerable for the other so that there is no real choice but to leave.

If, for example, a husband is sexually abusive or a wife is frequently so drunk that there is a danger to family members, whether children, the innocent spouse, or others, such that for safety's sake a party flees—this does not constitute desertion. The law will not allow the wrongdoer-spouse who drove the innocent spouse out of the house or the relationship to claim the status of victim in this form of involuntary abandonment.

What may happen is that there is more than one ground for divorce, so the parties involved may settle for irreconcilable differences as the reason for divorce. This means that desertion is not used as a ground for divorce since irreconcilable differences are a more neutral ground. Since more than one ground for divorce may fit a given case, the parties and their attorneys will most likely opt to use irreconcilable differences as a ground for divorce rather than desertion, as the former implies no guilt or wrongdoing on the part of either party. The exercise of this option normally occurs after settlement has been reached.

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