Divorce in Mississippi: The 3 Elements of Desertion

Welcome to the The Wade Law Firm, PLLC‘s, Mississippi Family Law and Divorce Attorney, blog site. As a full service law firm, our legal team offers a range of counsel, compassion, and zealous advocacy to every client. Among other areas, The Wade Law Firm concentrates on legal issues that touch closest to home: Family Law.

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When a divorce in Mississippi becomes necessary, it’s often because the couple just cannot get along or the relationship has become far too unjust or dangerous to one of the spouses involved. Often the couple is still living together or has at least some relationship at the time that divorce proceedings begin. However, sometimes a divorce isn’t pursued until one spouse has made it extremely clear that he or she is no longer willing to take part in the relationship at all. This is when one of the twelve fault grounds for divorce in Mississippi may be triggered – desertion.

Desertion is one of the fault grounds listed by law in the Mississippi Code Annotated at § 93-5-1. The law provides the much of the full story on how one spouse may prove desertion, but we’re going to cover some of the basics.

In the State of Mississippi, desertion is defined as one spouse’s, “willful, continued, and obstinate desertion for the space of one year.” Let’s break down that definition to see just what it means…

To prove desertion, there are three key points that the spouse seeking a divorce must prove to the court:

1. That the defendant (the deserting spouse) was absent for one year.

A court may not find that a spouse has deserted his or her marriage partner until he or she has been continuously absent for at least one full year. This is fairly straightforward, but it’s important to note that the yearlong period must be complete and unbroken. That means that even a short return home may sometimes stop the clock from ticking.

Example: A spouse may not have met the one-year term if he or she is gone for one year, except for spending time with his or her spouse during the Christmas holidays. Also, if the deserting spouse returns to salvage the marriage in good faith, but is sent away by his or her partner, the one-year period has not been met. The spouse must be absent from the marriage for a full year.

2. That the defendant intended to abandon the marriage.

The deserting spouse must have been absent from the marriage in a “willful and obstinate” fashion. Essentially, this means that he or she must have been absent with the intent to abandon the marriage. The spouse’s absence must not have had another legitimate reason other than a desire to leave the marriage.

Example: A spouse leaving for a lengthy military deployment overseas or even to seek a job in another state likely does not qualify as intent to abandon the marriage. Of course, proving a spouse’s reason for leaving may be difficult. That is why the courts are here, and why it is always smart to have an attorney by your side when litigating these matters.

3. That the plaintiff (the spouse seeking divorce) did not consent to the separation.

Finally, the spouse seeking a divorce on the grounds of desertion must prove to the court that he or she didn’t consent to the deserting spouse’s absence. Desertion is a fault ground, so someone must have been wronged. If one spouse agreed to his or her partner’s decision to leave for a year or more, that spouse has essentially agreed to the absence. Therefore, no one has truly been deserted.

In short, the evidence in the case must show that one spouse intended to leave the marriage while the other was willing to continue the relationship.

Need Legal Guidance?

Now, these are only the bare bones of obtaining a divorce in Mississippi based on desertion. There are many more wrinkles to this story, and you need the advice of an experienced attorney if you need to navigate this issue. Attorney Vangela M. Wade has over 18 years of legal experience representing countless clients navigating a variety of difficult situations.

As one of Metro Jackson and Central Mississippi’s best family law attorneys, The Wade Law Firm, PLLC is ready to answer your questions! Give us a call at601.790.0043 or contact us online today to discuss your legal matters in a confidential, affordable consultation.

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