Although divorce law is established at the state level, there are some common themes and requirements among the states. For example, individuals seeking divorce must have grounds to file. The permitted grounds for divorce vary by state, but are typically sorted into two categories – fault and no-fault divorce, with some states allowing only no-fault divorce. The majority of states, however, recognize desertion or abandonment as no-fault grounds for divorce.
No-fault divorce is a legal means for spouses to obtain a divorce without having to claim a reason to terminate the marriage, such as cruelty. California was the first state to introduce no-fault divorce, and now every state permits no-fault divorces. The unilateral nature of no-fault divorce, as opposed to the contested nature of fault divorce, facilitated the rise of divorces over the past several decades.
What Is Desertion?
Desertion occurs when an individual willfully leaves or abandons his spouse, intending to terminate the marriage. As the judge noted in Sinha v. Sinha, merely being physically separated is not sufficient to claim desertion, as there are many legitimate reasons a spouse may spend time away from home for extended periods of time. These reasons may not be enough to support a claim of desertion if the absent spouse does not intend to abandon the marriage. In addition to physical desertion, some states define desertion as the cessation of financial support. Another type of desertion is constructive desertion -- when a spouse deserts the marriage in a non-physical way, such as treating their spouse in an abusive manner.
Claiming Desertion as Grounds for Divorce
In order to claim desertion when you file for divorce, you must be prepared to show the judge proof that your spouse intended to end the marriage upon deserting you and you did not consent to such desertion. You must also provide evidence that you have not lived with your spouse for the period of time required by your state's law on desertion – this is typically one year.
If you are seeking a divorce after your spouse has deserted you, serving your spouse with the legal papers to commence the divorce action may present certain problems as you may not know where your spouse is. If this is the case, most states will require you to make a good faith effort to locate your spouse. Though rules differ from state to state, generally you must verify your efforts to find your spouse by signing an affidavit. If you are unable to locate your spouse, you will be unable to serve divorce papers claiming desertion personally on your spouse. Accordingly, state laws provide for alternative service methods, such as publishing a notice in a newspaper.