An Accusation of "Desertion" In A Divorce-How Do I Defend Myself?

Posted by Leslie ShumakeApr 03, 20220 Comments

Our office has seen more and more parties to a divorce action listing "desertion" as a grounds for divorce.  I don't have any statistical evidence as to the number of filings which include desertion as a grounds, but I would suspect the increase in cases listing it may have something to do with the difficulty of proving "habitual cruel and inhuman treatment" as a grounds for divorce.

But, what constitutes "Desertion" in a divorce case?  

Mississippi Code Annotated Section 93-5-1 permits a divorce for "wilful, continued and obstinate desertion for the space of one year."   If you have been gone from the marital home longer than one year, you are then subject to that accusation.  If so, how do you defend it? 

I have mentioned three (3) cases in this blog to give some basic, initial guidance as to the defenses to a claim of desertion.

One of the earliest cases to mention defenses to a "Desertion" claim was decided almost 100 years ago...October 25, 1926.  The case is Ammons vs Ammons, 109 So. 795, and is still cited today.   It is one of the earliest cases, if not the earliest, to mention that the person being accused of desertion in a divorce case can defend it by showing one of four (4) things:

    1.  That the other party's misconduct caused him or her to leave the marital home. 

    2.  That the other party consented or agreed to him or her leaving the marital home.

    3.  That the person being accused offered to return to the marital home and the offer was refused

    4.  That the period of desertion was not continuous for one year.

Fast forward some ninety (90) years to the case of Reeves vs Reeves, 127 So. 3d 300 (2013).  In that case, the husband used desertion as his grounds for divorce.  The trial court dismissed his divorce complaint and the husband appealed. The Court of Appeals agreed with the trial court, noting the fault of the husband in causing the wife to leave the home. (Number 1 above).  He further failed to show his honesty to "remedy his fault", nor was his offer to return to the marital home and reconcile made in good faith.  His offer was also not made with "honest intention." 

I suppose the Reeves case would need to be number 3 (a) above.

Brown vs Brown, 142 So. 2d 25, also decided in 2013, turns the tables a bit and deals with the misconduct of the party who actually stays in the home. Mrs. Brown sought to use desertion as a grounds for divorce in that case, asserting that her husband was gone for longer than a year and that he deserted the marital home through no fault of her own. The Trial Court disagreed with her assertion in this regard and dismissed her complaint on the grounds of desertion. The Appeals Court agreed with the trial judge, stating that the wife's testimony that she was not at fault and, furthermore, that she "repeatedly" asked her husband to return were countered by her actual actions during the marriage.  

The Dissenting Appeals Court Judge, however, disagreed with the ruling, writing that the wife did prove her case.  The Judge made the point that under the law the deserted spouse need not be blameless, only that his or her misconduct be of a serious nature, and an independent contributory or proximate cause of the separation.  In other words, her conduct was not bad enough to keep her from getting a divorce on the grounds of desertion.

As in most divorce cases, there is usually plenty of blame to go around and this does not necessarily prevent one from getting a divorce from a spouse on the grounds of desertion.  These are just the basics, of course, and there are many more cases that deal with the variations present in the desertion cases.

However, with these basic ideas as a starting point, you can at least determine on the front end if you have a possible defense to a desertion accusation.