No court rules determine which spouse can legally file for divorce, but you do have to have grounds – a legally permissible reason for ending your marriage. This may sound simple enough on the surface, but recognized grounds can vary a lot from state to state.
If Your Husband Files First
If your husband leaves and files for divorce before you do, he'll have to serve you with the paperwork. This is service of process, and it's a universal requirement from state to state. The divorce papers will tell you how much time you have to file an answer with the court, but it's usually about a month. If you don't do so, your husband can ask the court for a default judgment, and the judge will typically give him whatever he asked for in his divorce papers regarding things such as custody, support or property division.
Choice of Grounds
If your husband doesn't file for divorce and you want to, you may have to decide what grounds you want to use. All states recognize some form of no-fault divorce, and if you use this option, you don't have to prove any wrongdoing on the part of your spouse to get a divorce. Some states don't recognize any fault grounds at all, so you'd have no choice but to use this option. If you live in a state that recognizes fault grounds and you elect to file for desertion or abandonment, you'll have to prove certain elements of your spouse's departure. You may also have to wait a while before you can file.
Abandonment or Desertion
If you elect to file for divorce on grounds of abandonment or desertion, your husband's departure will probably have to meet certain criteria. Typically, he'd have to remain gone for at least a year. In some states, you need only wait out this period before you can file. In others, you must also prove that when your husband left, he did so with the intention of ending the marriage.
If your state imposes a waiting period before you can file on grounds of desertion, you might have problems paying your expenses on your own during this period, particularly if you have children. Some states, such as Maryland, offer a third option when this is the case. You can file for a limited divorce, or legal separation, enabling you to ask the court for a spousal or child support order while you're waiting to qualify for abandonment or desertion grounds. There's typically no waiting period for this type of litigation. After you've met the fault grounds requirements, you can file for divorce.
Serving Your Spouse
Another complication might arise if your husband left without any indication of where he was going. You can’t initiate a divorce without serving him with a copy of your papers, and if you don't know where he's living or working, this might be difficult. Many states allow you to serve him by way of notice in the newspaper, but typically you must exhaust all efforts to find him before the court will allow this, and not all states allow for this means of alternate service. For example, Louisiana requires that you pay a court-appointed attorney to represent your missing husband's interests in the divorce.
If you decide to file on fault grounds, it might potentially affect a judge's decision regarding issues of property and alimony, depending on your state's laws. If this is the case, your husband might contest your grounds by filing a counter-petition to your divorce papers and claiming "constructive desertion." This means your behavior forced him to leave. In this case, you'd both have a burden of proof to substantiate your grounds before a judge would allow marital fault to affect property division or alimony issues.