When can desertion be claimed in a marriage? 25 Answers as of December 28, 2010

If a spouse leaves home and takes all of his/her clothes without notifying the other spouse that he is leaving or their whereabouts, how long must that spouse be gone before it is considered desertion? Is there any advantage to claiming desertion in a marriage?

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Harris Law Firm
Harris Law Firm | Jennifer C. Robins
The State of Oregon is a no-fault state, meaning there does not need to be a "reason" for someone to file for divorce or legal separation. Most petitions simply state there has been an irremediable break down in the relationship.
Answer Applies to: Oregon
Replied: 12/28/2010
William C. Gosnell, Attorney at Law
William C. Gosnell, Attorney at Law | William C. Gosnell
One year is generally considered the minimum. That is without support. If spouse supports you there is no desertion in Tennessee.
Answer Applies to: Tennessee
Replied: 12/20/2010
Saddleback Law Center
Saddleback Law Center | Paris Kalor
If you are in California, then no. California is a no fault state, and it does not make any difference. However, you can obtain an order for exclusive use and possession of the house and change the locks.
Answer Applies to: California
Replied: 12/18/2010
Law Office of L. Paul Zahn
Law Office of L. Paul Zahn | Paul Zahn
Never in California. California is a no fault divorce state. You don't have to prove anything and there is no gain for showing that the other side did something wrong. I can help you file and move your case towards and expeditious resolution. Please contact me for a free consultation.
Answer Applies to: California
Replied: 12/17/2010
Law Office of Matt Potempa, PLLC
Law Office of Matt Potempa, PLLC | Matt Potempa
"Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year" is one of many grounds for divorce in Tennessee. There are "fault" and "no-fault" grounds in Tennessee and some allegations are more serious than others. There is no particular advantage for claiming one ground above another. Generally, "inappropriate marital conduct" is included as a "catch-all".
Answer Applies to: Tennessee
Replied: 12/7/2010
    Law Office of Michael E. Hendrickson
    Law Office of Michael E. Hendrickson | Michael E. Hendrickson
    Abandonment(desertion) is still recognized as a fault ground for divorce in the Commonwealth. Advantages? Probably, not many except the spouse allegedly deserted could file immediately (without waiting 6-12 months).
    Answer Applies to: Virginia
    Replied: 12/4/2010
    Steven D. Keist, Attorney at Law
    Steven D. Keist, Attorney at Law | Steven D. Keist
    Desertion is generally not an issue anymore, since the advent of no-fault divorce in almost every state. No advantage in AZ, not sure about other states.
    Answer Applies to: Arizona
    Replied: 12/3/2010
    Silber, Perlman, Sigman & Tilev
    Silber, Perlman, Sigman & Tilev | Kenneth Sigman
    In Maryland, a deserting spouse must be gone for one year before you can file a divorce complaint. The primary benefit to claiming desertion is that it enables you to file for divorce after one year of separation instead of two years.
    Answer Applies to: Maryland
    Replied: 12/2/2010
    DiManna Law Office, LLC.
    DiManna Law Office, LLC. | Dawn DiManna
    There is no advantage to claiming desertion. However, you can receive a Default Order, which means that you can have the court order what you want without the opposing party participating in the process as long as you do service by publication in a newspaper in the town of the last known address of the party. You can file and request a default hearing within 30 days of the publication in the newspaper.
    Answer Applies to: New Hampshire
    Replied: 12/2/2010
    Law Office of Joseph A. Katz
    Law Office of Joseph A. Katz | Joseph A. Katz
    The California Family Code does not provide for abandonment as a grounds for divorce. California is a no fault state, meaning that the parties just need to show 'irreconcilable differences' to obtain a divorce (assuming that the parties have lived consecutively in California for the past six months and the County in which they file (or at least the Petitioner) for the past three months).

    If the spouse has just disappeared, you could file your Petition at any time. You will have some issues with service of the Summons. You will probably have to publish in a local newspaper of the last known city in which the spouse lived if you truly have no idea where to find your soon-to-be ex-spouse. There are various declarations you must make regarding your due diligence in locating the ex-spouse to inform he or she of the pending Hearing.

    Though 'desertion' is not a grounds for divorce in California, it is an important consideration for the Court when considering custody and visitation of children, setting spousal support, and partitioning or dividing property.
    Answer Applies to: California
    Replied: 12/1/2010
    Law Office of John C. Volz
    Law Office of John C. Volz | John C. Volz
    California is a no fault state, so desertion would not be grounds for a divorce. The grounds would be "irreconcilable differences."
    Answer Applies to: California
    Replied: 12/1/2010
    John E. Kirchner, Attorney at Law
    John E. Kirchner, Attorney at Law | John Kirchner
    Desertion (sometimes referred to as abandonment) is generally irrelevant in Colorado (and most states) as a meaningful term because none of the issues to be decided in a divorce will be affected by a simple claim of "desertion". The simple answer to the question is that there is no specific advantage to "claiming desertion" because if that claim is made, the next question is "so what?". The concept of "desertion" only had meaning under former laws that required "fault" in order to obtain a divorce; under modern "no-fault divorce" law, whether or not one spouse "deserted" or not doesn't add anything to the case. Under no fault laws there is nothing that one party can claim that will prevent a divorce from being granted. Clearly, the act of "deserting/abandoning" a family and the family home may have some factual relevance in other decisions affecting custody of children, possession of the home or other property items, payment of debts, etc., but in such situations it is the circumstances and facts in each case that are relevant to the specific decision to be made - not simply the label. And, if the claim is simply made in a vacuum (e.g. unrelated to a specific issue) it will simply be ignored.
    Answer Applies to: Colorado
    Replied: 12/1/2010
    Law Office of Curry & Westgate
    Law Office of Curry & Westgate | Patrick Curry
    California is a no fault state, therefore it does not matter why, just file for divorce.
    Answer Applies to: California
    Replied: 12/1/2010
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    There is no such thing as desertion under Minnesota law. Minnesota is a "no fault" divorce state which means that a fault based basis for divorce need not be alleged to proceed with the divorce.
    Answer Applies to: Minnesota
    Replied: 12/1/2010
    Law firm of Cody & Gonillo, LLP
    Law firm of Cody & Gonillo, LLP | Christopher M. Cody
    Connecticut is a "no fault" state. No cause need be alleged other than that the marriage has broken down irretrievably with no hope of reconciliation. When you are ready to proceed to take action, call our office for a consultation.
    Answer Applies to: Connecticut
    Replied: 12/1/2010
    Warner Center Law Offices of Donald F. Conviser
    Warner Center Law Offices of Donald F. Conviser | Donald F. Conviser
    You do not need to claim desertion in order to dissolve your marriage in California. All that is required is a generic claim of irreconcilable differences which led to an irremediable breakdown of the marriage, and that counseling or assistance from the court would not serve to reconcile the marriage. The only possible advantage that I can envision to claiming desertion is if he has abandoned his children and has not made any effort to visit, contact or support them, in which case, those facts can be presented to the Court on the issues of child custody and visitation.
    Answer Applies to: California
    Replied: 11/30/2010
    Maclean Chung Law Firm
    Maclean Chung Law Firm | G. Thomas MacLean Jr.
    In California, you do not need a reason for getting divorced, which is why it is called a "no-fault" divorce state, so it doesn't matter what facts
    led to the divorce. You can file for a divorce at any time, you do not need to wait any amount of time after they have left. The only time desertion
    may be relevant would be in considering issues like child custody and support.
    Answer Applies to: California
    Replied: 11/30/2010
    Law Office of Vance R. Redmond
    Law Office of Vance R. Redmond | Vance R. Redmond
    You asked a question about "desertion" as the grounds for a divorce and when it can be claimed by the spouse that stayed in the marriage.

    Using your facts, the departing spouse commits desertion by leaving the marriage unjustifiably with the intention of ending the marriage and remaining away for 12 consecutive months. Desertion is grounds for both limited and absolute divorce. To get an absolute divorce based on desertion, you must show that the deserting spouse intended to terminate the marriage, that the deserting spouse was unjustified in leaving the marriage, that the resulting separation has continued for 12 consecutive months, and that the parties are beyond any reasonable hope of reconciliation. There is no particular "advantage" to pleading desertion.
    Answer Applies to: Maryland
    Replied: 11/30/2010
    Naziri Hanassab LLP
    Naziri Hanassab LLP | Vahid Naziri
    I do not believe there is a such a claim available for "desertion" in Calfornia law. California is a "no-fault" state so either spouse can file for divorce at any time. What the desertion does is give you an exact Date of Separation.
    Answer Applies to: California
    Replied: 11/30/2010
    441 Legal Group, Inc.
    441 Legal Group, Inc. | Gareth H. Bullock
    That depends on the State you are in. In Florida it does not matter there is no set time.
    Answer Applies to: Florida
    Replied: 11/30/2010
    Michael Apicella
    Michael Apicella | Apicella Law and Mediation
    No. there is no advantage to claiming that your spouse left you without reason or cause. Those facts would only become relevant if you have children and you're concerned about him getting custody when he doesn't communicate with you regarding his whereabouts (which would of course effect the children if you both had joint custody).

    California is a "no fault" divorce state. Meaning, the court doesn't much care about why the marriage is ending, only that one party wants a divorce. The legal term is called "irreconcilable differences."

    If you are contemplating divorce, it would behoove you to consult with a lawyer that works in the county that you live in. That lawyer can give you the full run-down on the divorce process, including any how best to manage issues relevant to your particular situation.

    Feel free to contact my office if you have further questions.
    Answer Applies to: California
    Replied: 11/30/2010
    Cramer Latham LLC
    Cramer Latham LLC | Victoria Cramer
    To discuss implications of claiming desertion in your particular case, please schedule in person (Wasatch front residents) or telephonic consultation. I cannot provide advise on line due to insurance considerations.
    Answer Applies to: Utah
    Replied: 11/30/2010
    Goldberg Jones
    Goldberg Jones | Zephyr Hill
    Just file for Divorce due to irreconcilable differences. There are only 2 grounds and neither is desertion.
    Answer Applies to: California
    Replied: 11/30/2010
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