Elements of Desertion as a Basis for Divorce


In marriage, you and your spouse make a conscious decision to spend your lives together. In some instances, however, this is not the reality in your union. Desertion or abandonment is now one of the most common grounds for divorce. In most states, this is among the grounds of fault-based divorce. Some people confuse desertion for separation. While in separation, you will both consent to living apart, only one spouse consents to desertion.

Family law attorneys in Albuquerque, NM, and other places may not use abandonment as the grounds for your divorce simply because your spouse has left your home for some time. Several legal elements should exist to support the case and tilt its outcome in your favor. Here are some of those elements:

Breaking of Matrimonial Cohabitation

Having separate sleeping arrangements might not suffice as desertion in divorce. You and your spouse should have different addresses for a specified period to ascertain that one has deserted the marriage. More often than not, the spouse that will be considered to have abandoned the marriage is the one who leaves the marital home. To prove that your spouse no longer lives in your home, you can subpoena his/her new landlord for a copy of the lease. Alternatively, you can prove that his/her subscriptions, letters, and bills are now being sent to a new address.


Intent to Desert the Marriage

Proving that your spouse intended to abandon the marriage might be hard. You nonetheless can issue an interrogatory or deposition for him/her to explain his/her reasons for leaving. The deposition denotes oral questions answered under oath with a court reporter present. Interrogatories, on the other hand, encompass written questions that should be truthfully answered or risk a penalty for perjury. The same can be served to families and friends testifying that they heard your spouse saying he/she is leaving because your marriage is over.

Lack of Consent for Desertion

You cannot use abandonment as the basis for your divorce application if you consented to your partner leaving. This might be challenging to prove, but if you have financial records in the months leading to the desertion of mutual plans like vacations you intended to take together, these might be helpful. Text messages and emails between you and your spouse or taking marital counseling can also prove your frame of mind regarding your partner’s decision to leave your marital home.

Lack of Justification for Desertion

You cannot have a hostile home environment or be abusive towards your partner and then accuse him/her of abandonment. Desertion will only apply in divorce cases if the one who left had no justification for the same. Some strife between spouses is normal, but if the courts consider it harmful for a person’s physical or emotional wellbeing, this might be deemed justifiable for a partner’s desertion.

If you file for divorce with the above elements of desertion present, this does not mean it will be a straightforward process that will not require a lawyer. At times, for instance, your spouse might suggest a reconciliation when he/she gets served for divorce. If you refuse, he/she will use this as proof of your desertion and mar your case.

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