Desertion
It can be grounds for divorce if a spouse simply abandons the marriage for a year or more. The general idea is that the spouse leaves for no good reason (or at least for not a good enough reason), without the consent of the left-behind spouse, and stays away for at least a year.
There are several rules that apply to a divorce on the ground of desertion:
Rule 1.
The separation has to be for a year. This means that if the spouse returns for a while and then leaves again, the one-year clock is reset — unless they came back without really intending to resume the marriage, in which case the clock keeps ticking. For example, if the wife returns home but sleeps in a spare bedroom with a lock on the door, she probably didn’t return with the intention to reconcile, so the one-year clock will continue ticking even though she’s back in the marital residence.
Rule 2.
Generally speaking, the separation has to be due to an intention to leave the marital relationship. In other words, leaving for work or to take care of a sick relative doesn’t count because the separation isn’t based on an intention to leave the marriage. Similarly, if the separation is based on an agreement by the spouses to go their separate ways, this is not desertion.
Rule 3.
The separation can’t be the fault of the left-behind spouse.
Rule 4.
If the leaving spouse in good faith wants to come back and reconcile, but the left-behind spouse won’t take them back, this is no longer desertion. Rule 4 gets to be a little tricky because what if a spouse refuses to return, or the other spouse refuses to let them return, unless they agree to conditions? The question turns on whether the condition is reasonable. You can’t come home unless you agree that my mother can live with us is not a reasonable condition. You can’t come home unless you give up your mistress is a reasonable condition.
Rule 5.
Rule 4 doesn’t apply after the year is over. For example, if the husband leaves on January 1, 2019, then according to Rule 4, the wife has to be willing to take him back for a year — i.e., until January 1, 2020. But once the year is over, Rule 4 no longer applies, and the wife is under no further obligation to reconcile. So if the husband offers to reconcile on January 2, 2020, she doesn’t have to take him back. In the eyes of the law, he waited too long.
“Marriage is tough....My wife kisses the dog on the lips but she won’t drink from my glass.”
Constructive Desertion
If the left-behind spouse — let’s say the husband — drove his wife out of the house, not only can he not claim that he has been deserted, but the wife can claim that she has been deserted, even though she is the one who left. And if the left-behind spouse refuses for a full year to reform his conduct, then the spouse who left will be entitled to a divorce. This is known as constructive desertion.
On a completely different note, it is also considered to be constructive desertion if one spouse refuses to have sex with the other for so long as to be considered “inexcusable.” In many cases this will be difficult to prove, since the only available evidence will be the testimony of the spouses — a swearing match, if you will, as to when they last had sex and why they didn’t have it more often.
Nevertheless, a spouse is entitled to a divorce if he can prove that the other “held out” for an inexcusably long period of time. Both parties agreeing to forego sexual relations is not considered constructive desertion.
