Dean and Doreen are married, but they have not lived together since Dean left the marital home in Massachusetts about two years ago and moved out of state. While Massachusetts recognizes no fault divorce, meaning a party need only claim that there’s been an irretrievable breakdown of the marriage, some parties understandably prefer to file for fault, such as abandonment or desertion. In this case, Doreen would like to file for divorce and wonders if this approach makes sense.

In Massachusetts, by statute, desertion of a spouse is a fault ground for divorce. If you’ve essentially been abandoned by your spouse, this may be grounds for your divorce. The applicable statute reads: “A divorce from the bond of matrimony may be adjudged for…utter desertion continued for one year next prior to the filing of the complaint[.]”

The applicable statute sets out the elements as follows: “In order to establish grounds for divorce for desertion, the plaintiff shall establish that the defendant left voluntarily and without justification and with intent not to return, that at the time such defendant left, the plaintiff did not consent thereto, and that the defendant failed to cohabit with the plaintiff for at least one year next prior to the date of the filing of the action.”

Under this statute, it is important to note that the intent to abandon one’s spouse must be present in order for this type of claim to stand. Therefore, if a party leaves but intends to return to the marital home, the other spouse may not have a valid claim for desertion. Moreover, if a party deserts his or her spouse for a valid reason, such as to seek employment, to escape domestic abuse, or for purposes of a military deployment, that reason may serve as justification, and a claim for desertion may fail as a result. Further, the desertion must happen without the consent of the other spouse—mutual separation, or consent to the spouse leaving, means that no desertion has taken place.

The courts also recognize the concept of constructive desertion, where a spouse might not physically leave the marital home but withdraws from the marital relationship. In one older case, the husband was held to have constructively deserted his wife when he abandoned all matrimonial communication and relationship with her and denied her the ability to live in his home.

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