Desertion is one of the statutory fault grounds for divorce in Mississippi. While it is actually one of the lesser used grounds for divorce in this state, it is probably the fault ground that is most misunderstood by laypersons. One of the prevailing misconceptions about this fault ground that I frequently hear when clients come to see me goes something like this, "Our marriage is over, but I know I am not supposed to leave the house because that is desertion, right?" Wrong. That is not desertion. The simple act of leaving the marital home will not provide your spouse with grounds for a divorce based on desertion. Let's take a closer look at what the law says desertion is.
Desertion as defined in the statute is, "Willful, continued and obstinate desertion for the space of one year."
In order to prove desertion a plaintiff must show:
1) The defendant has been absent for one year
2) The defendant Intended to abandon the marriage
3) The plaintiff did not consent to the separation
The space of one year must be continuous. A good faith-offer to reconcile by the deserting spouse interrupts the one-year, effectively restarting the clock at zero.
Interestingly enough, a rejection of a deserting spouse's good-faith offer to reconcile by the deserted spouse could ultimately provide grounds for a divorce for desertion for the spouse that originally abandoned the marriage. So if a wife initially leaves the marital home, intending to abandon the marriage and without the consent of her husband, but after 6 months she offers to reconcile in good-faith (no outrageous demands for her return) but her husband rejects her offer - twelve months later she could potentially sue him for desertion.
Additionally, a spouse's absence must be due to an intent to abandon the marriage - an agreed upon separation by itself will not constitute desertion, absent a later rejected offer to reconcile. Also, legitimate absences such as for work will not be considered desertion if there was no intent to abandon the marriage.
While desertion may be one of the lesser used grounds for divorce, there are still plenty of cases that qualify. If your spouse has fled the marital home, contact a divorce and family law attorney to discuss your options.
Jonathan T. Day, Esq. is a Divorce & Family Law attorney serving the Jackson, MS metro-area.
You can reach him at (601)-707-8953 or jtd@jonathantday.com.
Showing posts with label fault. Show all posts
Showing posts with label fault. Show all posts
Divorce Basics
In Mississippi, there are two different ways by which one can obtain a divorce.
One way is through 'fault' grounds - fault grounds include adultery, cruel and inhuman treatment, habitual drunkenness, habitual drug use, and desertion. When a fault ground exists, it is typically because one party is more to blame for the failure of the marriage. When a party has a fault based ground for divorce - for example their spouse has committed adultery - the party may be granted a divorce by the court even if there is no agreement between spouses to be divorced.
The other way in which one can obtain a divorce in Mississippi is through 'irreconcilable differences'. Irreconcilable differences requires agreement of the parties, unlike a divorce obtained on a fault ground, and is sometimes referred to as a 'No-Fault' divorce. An irreconcilable differences divorce can come about in a couple of ways. First, the parties could agree to every aspect of the divorce including custody and visitation arrangements, division of property, and support. Alternatively, the parties may agree to divorce, but can not agree on all the issues. In this situation the parties may elect to have a trial in which the court decides issues that the parties can not agree on.
By far, most divorces in Mississippi are granted for irreconcilable differences. Even when a complaint is filed based on fault grounds it is common place to alternatively request a divorce based on irreconcilable differences in case the parties agree to settle. Most of the time, if a reasonable agreement can be made, it is in the best interest of both parties to do so for a couple of reasons. First, it saves the parties the cost of extensive discovery, trial preparation, and the actual trial which can significantly drive up the cost of a divorce. Second, most people tend to be more satisfied with a settlement agreement that they had a hand in negotiating and drafting versus having the court decide for them. Additionally, it saves the family from the sometimes irreparable harm that can come as a result of litigating a fault ground based divorce. This is especially true when there are children involved.
While irreconcilable differences divorces are the most common, and can frequently provide the best outcome for both parties, they don't always provide the best resolution. Next time we will discuss why the requirement that the parties must agree can be problematic.
One way is through 'fault' grounds - fault grounds include adultery, cruel and inhuman treatment, habitual drunkenness, habitual drug use, and desertion. When a fault ground exists, it is typically because one party is more to blame for the failure of the marriage. When a party has a fault based ground for divorce - for example their spouse has committed adultery - the party may be granted a divorce by the court even if there is no agreement between spouses to be divorced.
The other way in which one can obtain a divorce in Mississippi is through 'irreconcilable differences'. Irreconcilable differences requires agreement of the parties, unlike a divorce obtained on a fault ground, and is sometimes referred to as a 'No-Fault' divorce. An irreconcilable differences divorce can come about in a couple of ways. First, the parties could agree to every aspect of the divorce including custody and visitation arrangements, division of property, and support. Alternatively, the parties may agree to divorce, but can not agree on all the issues. In this situation the parties may elect to have a trial in which the court decides issues that the parties can not agree on.
By far, most divorces in Mississippi are granted for irreconcilable differences. Even when a complaint is filed based on fault grounds it is common place to alternatively request a divorce based on irreconcilable differences in case the parties agree to settle. Most of the time, if a reasonable agreement can be made, it is in the best interest of both parties to do so for a couple of reasons. First, it saves the parties the cost of extensive discovery, trial preparation, and the actual trial which can significantly drive up the cost of a divorce. Second, most people tend to be more satisfied with a settlement agreement that they had a hand in negotiating and drafting versus having the court decide for them. Additionally, it saves the family from the sometimes irreparable harm that can come as a result of litigating a fault ground based divorce. This is especially true when there are children involved.
While irreconcilable differences divorces are the most common, and can frequently provide the best outcome for both parties, they don't always provide the best resolution. Next time we will discuss why the requirement that the parties must agree can be problematic.
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