Criteria for Desertion
Proving desertion is typically a three-pronged challenge. In many states, you must establish your spouse's absence from the marital home, that he left with the intention of ending the marriage, and that he did so against your will. If your spouse leaves you, you generally cannot file for divorce on grounds of desertion the next day. He must remain gone for at least a year in many jurisdictions. If your state allows you to file on grounds of abandonment instead of desertion, you typically will not have the burden of proving that your spouse left with the intention of ending your marriage.
Proving Your Spouse's Absence
Proving that your spouse is absent from the marital home may be the easiest fact to establish. After you file for divorce, you're entitled to issue subpoenas to third parties if they possess information pertinent to your case. For example, you may subpoena his landlord for a copy of his lease if he rents a new home, or utility services for accounts in his name. These documents may establish the address and the duration of the service provided. If the address isn't your marital home, you've got proof that he's living elsewhere. If he says he was paying for the residence, but not actually living there or intending to remain there, you may consider hiring a private investigator who can take photos of him coming and going from the new residence on a regular basis. A private investigator can also give testimony at trial, detailing what he witnessed.
Proving Your Spouse's Intent
Proving that your spouse left with the intention of ending your marriage may be more difficult. You – or your attorney – can depose him or issue interrogatories to him, asking him to explain why he left. Depositions are oral questions he must answer under oath and in the presence of a court reporter. Interrogatories are written questions that he must answer under penalty of perjury. You may also subpoena his friends or acquaintances who may have heard your spouse say that he left you and he's not going back because the marriage is over, and have them testify at trial.
Proving Your Lack of Consent
You can testify to your lack of consent, but the court might want more proof than this. If you go through your financial or other records for the months immediately before your spouse left you, you might find a receipt for a purchase that shows you intended the marriage to continue, such as a prepaid vacation you scheduled for the two of you. If you know such receipts exist, but you no longer have them, you may decide to subpoena the travel agency or the merchant for copies. Emails or text messages you sent to your spouse, suggesting that the two of you try to work things out, can provide evidence of your frame of mind. Your own friends and acquaintances can also testify to things you told them, such as that you did not want your marriage to end.
If your spouse suggests a reconciliation, and if you refuse, you may lose your right to claim desertion in a divorce. In fact, you might give him his own grounds for desertion – now you have ended the marriage against his will. Desertion isn't grounds for divorce if you did something that drove your spouse away, so you may also need witness testimony subscribing to your good behavior in the months before your spouse left you.