When one spouse suddenly leaves the marital home without warning or explanation, the remaining partner often feels confused and abandoned. Many people wonder whether their spouse’s departure constitutes desertion and how this might affect divorce proceedings. Desertion is a specific legal ground for divorce in New Jersey that is about more than just one person moving out.
What Constitutes Desertion in a New Jersey Divorce?
Desertion occurs when one spouse leaves the marital home and does not return for at least 12 consecutive months without the other spouse’s consent and without justification. The departure must be willful and persistent, meaning the leaving spouse intended to end the marital relationship. Simply moving out during a trial separation or leaving because of abuse does not meet the legal standard for desertion in New Jersey courts.
How Does Willful Desertion Differ From Abandonment?
Although people often use these terms interchangeably, willful desertion is the legal terminology used in New Jersey divorce law. The action requires proof that one spouse deliberately left without reasonable cause and refused to return or resume marital duties. Abandonment is a broader term that may describe the emotional or financial withdrawal from family responsibilities, which can occur even when both spouses still live together.
What Is Constructive Desertion?
Constructive desertion happens when one spouse makes living conditions so intolerable that the other spouse is forced to leave. This might include refusing marital relations, creating a hostile home environment, or engaging in abusive behavior that drives the other person away. The spouse who leaves because of these circumstances can claim constructive desertion against the spouse who created the unbearable situation, essentially reversing who is considered the deserting party.
Does Desertion Affect Property Division in Divorce?
New Jersey follows equitable distribution laws, which means courts divide marital property fairly but not necessarily equally. While desertion itself is not a primary factor in property division, judges may consider the circumstances surrounding the desertion when determining what constitutes a fair split. For instance, financial misconduct during the separation period, such as depleting bank accounts or hiding assets, can influence how the court divides property between spouses.
Can Desertion Impact Child Custody Decisions in Edison?
Family courts prioritize the best interests of children when making child custody determinations. A parent’s act of desertion may be considered if it demonstrates a pattern of abandoning parental responsibilities or shows an unwillingness to maintain a relationship with the children. However, simply leaving the marriage does not automatically disqualify someone from obtaining custody or parenting time, as courts evaluate many factors when making these decisions.
What Evidence Is Needed to Prove Desertion?
Documentation plays a vital role in proving desertion claims for those who were left behind. Important evidence includes the exact date the spouse left, any written communications showing intent not to return, witness testimony from family or friends, and records demonstrating that the departing spouse ceased contributing to household expenses or family obligations. Photographs, text messages, emails, and financial records can also support a desertion claim in court proceedings.
How Can Someone Who Left the Marriage Defend Against Desertion Claims?
A spouse who departed the marital home can present defenses showing justification for leaving. Valid reasons include escaping domestic violence, leaving because of the other spouse’s adultery, and departing because the remaining spouse created unbearable living conditions. Proving that both parties agreed to the separation or that attempts at reconciliation were made can also counter desertion allegations, as can demonstrating continued financial support for the family.
Edison Divorce Lawyer at Thakkar Family Law Will Provide the Legal Guidance You Need
Whether you left your marriage or your spouse departed without warning, the Edison divorce lawyer at Thakkar Family Law can explain your legal options and help you move forward. Call us today at 732-456-7456 or fill out the online form for a free consultation. We are located in Piscataway, New Jersey.