Desertion vs. Constructive Desertion

Desertion occurs when a spouse leaves home without justification or consent from the other spouse. In this case, the fault lies with the spouse who leaves the home. Constructive desertion occurs when a spouse is caused to leave home by the other spouse’s misconduct. In this case, even though one spouse physically leaves the home, the spouse engaging in misconduct is at fault.

Actual desertion requires the spouse seeking divorce prove 1) the end of cohabitation (the spouses no longer live together or engage in sexual relations) 2) the deserting spouse’s intent to end the marriage 3) the leaving was not justified 4) there is no hope of reconciliation 5) the deserted spouse did not consent to the desertion 6) the desertion lasted for 1 year.

Constructive desertion requires the same 6 elements listed above. The most common ground for constructive desertion is cruelty. Constructive desertion is when one spouse makes the household unlivable for the other spouse. Misconduct that qualifies constructive desertion can include domestic violence and excessive emotional harassment. Willful and continual refusal of sexual relations for 12 months can also contribute to constructive desertion.

Desertion must continue uninterrupted for 12 months. Spending even one night with a deserting spouse will eliminate the desertion ground and restart the 12­ month time requirement. If your spouse returns and begs to come back, you can either turn your spouse away and move forward with the divorce, or you can forfeit your desertion grounds and work towards reconciliation.

If you are considering filing for divorce you may want to consult an attorney. We handle Maryland’s divorce cases on a daily basis and we’ve been doing it for more than 20 years. Call the Law Offices of David L. Ruben today for a free consult (410) 766­4044.

Categories: Divorce, Family Law

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