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Divorce Lawyer in Maryland Explains Desertion as a Ground for Divorce

In order to file for divorce in the state of Maryland, several requirements must be met. Unlike no fault states, Maryland requires a specific reason for divorce. If the married couple lives apart for 12 or more months before filing for divorce, this “fault” requirement is waived. Additionally, at least one spouse must be a Maryland resident for at least one year before filing for the divorce. Divorce can be a pretty tricky subject, especially with multiple variables involved. It’s always best to consult a divorce lawyer in Maryland to assist you in your particular case.

There are two types of divorce in Maryland:

  • Limited divorce has less stringent terms regarding the grounds on which a divorce is filed. Limited divorces are not filed and do not terminate the marriage. A limited divorce permits the state to legally recognize the separation of a couple while still considering them legally married.
  • Absolute divorce completely dissolves the marriage, allowing a couple to divide assets and remarry.


When relationships hit hard times, one partner may decide to leave the marital home. If one spouse leaves or abandons the other, it may be considered desertion, which can be a legal cause for absolute divorce when it occurs for 12 consecutive months. Spousal desertion may result in legal penalties to the deserter, including alimony as well as asset allocation issues.

Desertion is not a commonly used grounds of divorce since Family Law 7-103 includes language permitting a divorce when there have been 12 months of uninterrupted separation. However, there can be penalizing effects on the deserter when desertion is used for divorce filings.

There are two types of desertion: actual and constructive.

  • Actual desertion occurs when one partner elects to leave the family home or banishes the other spouse from that home without justifiable cause.
  • Constructive desertion occurs when one spouse mistreats the other, resulting in the departure of a spouse. The spouse that mistreats their partner is considered the deserter, as it compels him or her to leave. The central issue is “whether the offending conduct is so intolerable that the complaining spouse was justified in leaving,” according to Lemley v. Lemley.

When the separation is not mutual, either spouse may have a defense. The spouse who remains in the marital home may claim actual desertion, stating the other spouse left without cause, abandoning the marriage. The spouse who left may claim constructive desertion, asserting he or she was forced to leave due to the mistreatment of the spouse remaining in the home. Each case is unique and a skilled divorce lawyer in Maryland is your best source in a successful divorce.

Proving fault

To prove actual desertion, the individual filing for divorce must prove the following:

  • The deserting spouse intended to end the marriage
  • Cohabitation has ended
  • The partner that left was not justified in leaving
  • There is no hope of reconciliation
  • The partner that remains in the marital home did not consent to the separation
  • The desertion has continued uninterrupted for 12 months

When arguing constructive desertion, there must be some indication of one spouse’s actions that are sufficient to cause the other to leave the home. In cases involving constructive desertion, the following factors are taken into account:

  • The nature and duration of the misconduct
  • The length of time the deserting spouse endured misconduct
  • The attempts the deserting spouse made to try to save the marriage

When Considering Constructive Desertion

When an individual feels compelled to leave the marital home and believes there is justification under the parameters of constructive desertion, it’s important to consider the following:

  • Is there justification in leaving due to the other spouse’s behavior? It’s important to establish there is sufficient justification before leaving as the remaining spouse may have a case of actual desertion against the leaving partner.
  • Is there any fault that can be placed on the individual considering constructive desertion, such as adultery? This can be brought to light in court and may prevent the granting of a divorce based on constructive desertion.
  • Does the leaving party have preparations? – Is there a location at which the leaving spouse can stay? If there are children, will they be safe at the marital home? If not, can the leaving party provide for them alone? It may take a long time for alimony to be gained.

If you feel there weren’t grounds for constructive desertion, you must contact a divorce lawyer in Maryland for legal help.

Things to consider during desertion

There are several things an individual must be sure to do, or not to do, in order to facilitate the process of desertion-based divorce.

  • Do not sleep with your spouse! Sexual encounters or even sleeping in the same house will interrupt the 12 month period that is required for desertion-based divorces.
  • Do not consent to the desertion! This changes the desertion to voluntary separation and the deserting spouse will not be considered at fault.
  • Do not engage in any misconduct that would justify the desertion. Emotions run high but it’s important to stay level-headed in order to maintain a strong case.

Return of a spouse

If a spouse deserts the marital home but then returns, it is possible to refuse to accept them. If a spouse forgives and accepts the deserter, the issue of desertion is settled and dissolved. If the deserted spouse refuses to engage with the deserter at all, the court could then consider that spouse to be the deserter! In cases in which the original spouse that deserts tries to return in “bad faith,” such as because he or she realized the high cost of actual desertion, the other spouse is not required to accept him or her.

Clearly it can be very complicated to navigate divorce proceedings and to know exactly what action is appropriate. It’s important to seek advice from a divorce lawyer in Maryland in order to act knowledgeably and protect yourself.

Call a Divorce Lawyer in Maryland for Any Divorce Questions You May Have

For many, divorce is an unpleasant and difficult time in their life. The emotional pain and financial burdens can be overwhelming but The Burton Firm is here to provide compassionate and expertise legal help. Give us a call at (301) 420-5540 for a consultation.


Aubrey Burton, Jr.
14626 Main Street, Suite 202 | Upper Marlboro, MD 20772
Telephone: (301) 420-5540
Fax: (888) 778-0475
Divorce Lawyer in Maryland Explains Desertion as a Ground for Divorce
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