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Leave Your Spouse without Deserting Your Spouse

If it were easy to live with your spouse you probably wouldn't be considering divorce. Yet, often times a spouse will remain in an unpleasant home environment during a divorce for fear of losing his or her interest in the house or for fear of the other person accusing them of desertion. In Georgia, merely leaving the home just prior to filing for divorce or after filing for divorce does not terminate your interest in the property, and it does not necessarily qualify as desertion.

Desertion is a fault based ground for divorce in Georgia; however, there are a number of factors that must be met for a spouse's actions to qualify as desertion. Sometimes referred to as abandonment, desertion occurs when one spouse leaves the marital home without the consent of the other spouse for at least one year. To qualify as desertion, the evidence must show: a willful refusal to cohabitate with the intent to separate, the leaving spouse acted without justification, cohabitation has not resumed, and the desertion continued for a period of at least one year immediately prior to the filing of the divorce petition. Desertion requires intent. Military deployment, job relocation, and marital obligations will not be considered desertion unless the leaving spouse intended to desert the other spouse. This intent is most often shown by correspondence between the parties. If there is an agreement between the parties that one spouse will relocate for business or marital reasons, the temporary move does not qualify as desertion.

If, in fact you have left the home and met the factors required for desertion outlined above, your desertion could affect your claim to the marital home. Marital property is subject to equitable division. The judge may consider both the occupancy of the home and the financial contributions to the home (including mortgage, tax, and utility payments) when deciding who will have final ownership of the marital home. If you want a strong claim to the property even after leaving marital home, you will need to show that you continued contributing to the upkeep of the home even after you left. Keep records of all payments in the form of canceled checks or electronic receipts.

If you file for divorce while living in the marital home, your spouse could still accuse you of desertion if you had no conjugal relationship with your spouse in the year prior to filing—this does not mean that you merely did not have sex, but that you have denied your partner conjugal relations with the intent to terminate the relationship without any other justification. This is an older Georgia divorce law and may no longer be applied broadly in family law. Conjugal relations include the company, cooperation, assistance, and intimacy between spouses—not just sex. Hence, you can desert your spouse while still living under the same roof.

By: Katherine M. Wheat, Associate Attorney, Meriwether & Tharp, LLC

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