Spousal Desertion Law and Legal Definition

Actual desertion is where one party unjustifiably abandons the other or actually forces the other spouse out of the home. It is generally held that abandonment or desertion requires proof of four elements:

  1. a voluntary separation of one spouse from the other;
  2. with intent not to resume cohabitation;
  3. without the consent of the other spouse; and
  4. without justification.

Constructive desertion is where one party is forced to leave the home because of the misconduct of the other. Constructive desertion is often involved in cases of domestic abuse. In those states which accept the doctrine of constructive desertion, desertion is defined as the conduct which justifies the departure. However, subjective standards are used to interpert the meaning of a justified departure. Desertion is often a grounds for the other spouse to obtain a divorce. There is equal application of the law to both husbands and wives. There is no specific time period necessary to find a constructive desertion, as state laws vary, but many states define it as a "reasonable time". Other states define a certain time period, such as one year after separation, in order for a spouse to obtain a divorce based upon desertion.